I promise that, barring unexpected developments, this will be the last post on Ferguson, Missouri and the shooting death of Michael Brown. Being an attorney and part of the legal system, if you will, I continue to be very disturb by the travesty that took place in the grand jury presentation and the way in which prosecutor Bob McCulloch seemed to bend over backwards to make sure that no indictment would be handed down against police officer Darren Wilson. Two articles focus on McCulloch's manipulation of the grand jury process and the questions that should have been ask but which were not asked. The take away? McCulloch did not want an indictment and he did all in his power to guaranty that result. The entire process was a travesty. The first is from Salon. Here are highlights:
St. Louis County prosecutor Robert McCulloch’s decision to “open up” the grand jury proceedings by including massive amounts of testimony and evidence has been decried as “highly unusual,” “deeply unfair,” and evidence that police officer Darren Wilson received “special treatment.” McCulloch’s move to include a good deal of exculpatory evidence and testimony led to a three-month, closed-door proceeding that included 70 hours of testimony, including 60 witnesses and three medical examiners. The breadth of the evidence presented to the grand jury has led many to declare that it turned the entire proceeding into something that walks and quacks an awful lot like a trial, but without many of the procedural rules that would make a trial truly fair.
This move to morph a grand jury inquiry, which is typically a short rundown of the case for the prosecution, into a trial-like parade of mountains of evidence raises serious issues about the rights of Michael Brown’s family to have a fair process for their dead son, as well as highlighting concerns about unequal treatment of different kinds of criminal defendants. But seemingly lost in this jumble of legal concerns is the fact that McCulloch’s decision to shift the truth-seeking function of a criminal trial into the secret realm of the grand jury room violated another set of constitutional rights—ours. It violated our collective public right to an open criminal justice system. And if ever there was a trial to which Americans deserved a meaningful right of access, Wilson’s trial was it. Instead, we have a post-hoc document dump.
In the 1980 case of Richmond Newspapers v. Virginia, the Supreme Court declared that the press and public have a First Amendment right of access to criminal trials. . . . Public access to court proceedings is one of the numerous ‘checks and balances’ of our system, because ‘contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.’ ” This right of open trials belongs not just to the accused but to all of us. It is, the Supreme Court said in the 1986 case Press Enterprise v. Superior Court, “a shared right of the accused and the public, the common concern being the assurance of fairness.”
Think about the closed doors in Ferguson these past months as you reflect on what Chief Justice Warren Burger famously explained: “When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.”
Following his long public hand washing and cheerful mocking of witnesses, St. Louis County Prosecutor Bob McCulloch stood by for a few minutes of questioning. It was a frustratingly brief exchange, during which McCulloch was three times asked the one question that McCulloch had already said he could not answer: what was the actual vote count on the charges before the grand jury.
Thank you, "professional reporters" for wasting this unique opportunity to clear up a few matters.
But there are a few things they could have asked McCulloch. Things that needed to be said in front of a national audience:
First, instead of asking McCulloch the vote breakdown, they might have asked him this:
Question: How many charges was the jury asked to consider, and how many would have needed to vote against any charge to keep it from becoming a "true bill" of indictment?
Answer: Infinite, and four
McCulloch gave the jury no instruction on what charges they should consider. Many sources have said that the jury could have considered first degree murder, second degree murder or various levels of manslaughter. True enough. They might have also considered illegal discharge of a firearm. Or assault. Or more or less anything.
Giving the grand jury no instruction is equivalent to throwing them into the deep end of the pool with no swimming lessons. They had to work it out for themselves.
Question: How many police officers have been indicted in shooting incidents since Bob McCulloch became prosecutor way back in 1991?
Answer: None
McCulloch is the son of a police officer who was shot in the line of duty. In his 24 years as prosecutor, he has never recommended charges against any police officer.
Question: Had this been a completely different sort of incident, one in which an officer had been killed, would you have instructed the jury in the same way?
Answer: Oh, hell no.
The whole presentation to the grand jury was engineered not only to generate this outcome, but to do so in a way that uses the grand jury process to shield the true nature of what happened. It's a system that McCulloch knows well.
Another very good question that I forgot until it came up in comments: How is it that what the grand jury was told about Wilson's knowledge of the incident at the store involving cigars is completely at odds with the public testimony of the Ferguson police chief two days after the incident? How is it that Wilson having "made" Brown as a suspect in a robbery, called for backup, but that call is not recorded in any of the released transcripts of police communications? That whole section of McCulloch's statement, covering Wilson's extremely unusual testimony before the grand jury, is completely at odds with everything we were told for the last four months.
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