The Questions No One Asked Ferguson Prosecutor Bob McCulloch

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.”

There's more, so read the entire article.  The second piece is in Daily Kos.  Here are relevant excerpts:

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.

Scalia Explains What Was Wrong With The Ferguson Grand Jury

As regular readers know, I almost NEVER agree with anything that Supreme Court Justice Antonin Scalia believes or says.  Indeed, I have argued on this blog as to why the man needs to be removed from the Supreme Court.  Yet, in a 1992 Supreme Court decision Scalia laid out the role of a grand jury and what we witnessed in the Darren Wilson case is a total subversion of that role.  Here are highlights from Think Progress:

On Monday, Prosecutor Bob McCulloch announced that a grand jury had decided not to indict Darren Wilson, the officer who killed Michael Brown. But that decision was the result of a process that turned the purpose of a grand jury on its head. 

Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.

In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson. 

The take away?  That McCulloch did all he could to insure that no indictment would be handed down.   Others have come to a similar conclusion as Andrew Sullivan has noted:

Toobin blasts McCulloch for misusing the grand jury:

[T]he goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.

Noam Scheiber is on the same page:

Politically, I understand the advantage of this for McCulloch. He gets to wrap his preference for not indicting Wilson in the legitimacy of a trial-like process, whereas simply declining to indict Wilson without the support of a grand jury would have left him badly exposed. It would have triggered an enormous political backlash, rather than the relatively minor uproar we witnessed Monday night. But as a basic matter of justice, it’s outrageous. As I noted yesterday, the only way to earn the legitimacy of a trial is to actually have a trial, in which both positions are given a fair hearing.

 Justice was not served and while McCulloch may have felt that he was covering his ass, all he did in reality is to cast doubt on the entire criminal justice system and enhance the specter of white privilege.