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.

The Right’s Ferguson Ploy: Why they Want to Focus on “Riots”

In the minds of the members of the far right - especially the Christofascist/Tea Party element - anyone who is not a white, heterosexual, Christian conservative is not really a citizen of the United States or, worse yet, fully human.  In their minds the rest of us, blacks in particular, are not even really fully human.  One might say they view us as some lesser species or, at worse, animals.  Hence the right's desire to focus on the riots and lawlessness that followed the in appropriate grand jury verdict of not returning an indictment against Darren Wilson (see the images above from Fox News) who by his own testimony suggests that he did not see Michael Brown as a fellow human( some of the Norfolk police I encountered in the past - and I would argue perhaps even two Norfolk Circuit Court judges - did not see me as human because I was gay).  They want to use the riots and unrest as justification for police brutality and their own view of minorities as little more than animals.  Sadly, those who engaged in looting and the destruction of private property - who are cretins and betrayers of their own community in my view - played right into the hands of the far right, their mortal enemies.   Some may think me harsh, but sadly I don't think I am misjudging the "godly folks" and their far right allies.  A piece in Salon looks at the far rights desire to change the subject from police misconduct and a law enforcement system biased against blacks in particular.  Here are excerpts:

From the very beginning, before St. Louis County prosecuting attorney Robert McCulloch had uttered the first word of his defensive and dissembling speech, the fix was in. The conspiracy this time was not to protect Officer Darren Wilson from standing trial for the killing of Michael Brown, though that was certainly related. This time, the conspiracy was to organize the announcement of Wilson’s exoneration in as provocative a way as possible. The ultimate goal was to manipulate the public and the press into forgetting the real story of Ferguson — of police brutality and racial injustice — and bickering about the morality of rioting instead.

At the very least, that’s the impression I’ve had throughout the Ferguson controversy, especially as the wait for news from the grand jury dragged on, and as the county’s offices began leaking pro-Wilson factoids like a sieve. And after witnessing last night’s spectacle, which was preceded by multiple delays and conspicuous readying of the state’s police forces, I’m no less convinced that the powers that be in Missouri approached the Wilson verdict with little concern for accountability or justice. All they wanted was to improve the Ferguson power structure’s battered images — not by doing good, but by making the protesters look even worse. It’s a tried and tested strategy; as Rick Perlstein has documented, it helped make Richard Nixon president.

A quick look at the nation’s front pages on Tuesday indicates that the plan worked on some, but fewer perhaps than these would-be Pat Buchanans wanted. By maneuvering to incite disorder and polarize public opinion along race lines, these would-be Nixons probably thought they could “cut the … country in half,” as Buchanan recommended, and walk away with “far the larger half.”

Put simply, we must not allow supporters of the Wilson verdict to distract us by making this a conversation about rioting or poverty or race. That’s not to say we should condone the riots; and it’s certainly not to say we should avoid subjects that involve issues of race and poverty. What it means instead is keeping in mind that riots are nothing new, that the unique struggles of the African-American community can’t be simply attributed to poverty, and that discussions of “race” that aren’t linked with specific policy changes often result in little more than frivolous declarations of privilege.

If we can combat the dual influences of a Ferguson elite that wants national attention to drift elsewhere; and a national media that dislikes policy and favors more watchable, clickable, shareable and fundamentally empty manifestations of the culture war — if we can do that, there’s hope that even though the killing of Michael Brown by Darren Wilson will always be an obscenity, it won’t have been entirely in vain. So let’s ignore those in American society who would rather debate the merits of trashing a bodega than the killing of a child, and let’s not listen to those who would use this opportunity to re-litigate the civil rights movement, the Rodney King riots or the Trayvon Martin case.

I by no means condone looting and violence.  Martin Luther King was onto something when he called for peaceful protests.   That said, gays and all other minority members need to remember that these same elements of the far right hate us too and look for every opportunity to denigrate us and depict us as less than truly human.  We cannot allow ourselves to fall for their propaganda. 

Why Michael Brown's Family Never Had a Chance at Seeing an Indictment

I have shared my views before on America's criminal justice system when it comes to the unequal treatment of minorities, especially blacks.  To call the system dysfunctional would be unduly kind.  Rigged, corrupt or biased are terms much more on target.  Howard Fineman has a piece at Huffington Post that evaluates why the Brown family had virtually no chance in seeing their son's killer indicted.  Remember, an indictment is not a conviction.  Rather it is merely a finding that a crime may have occurred and that a full, public trial is warranted to better determine guilt.  Sadly, in Missouri - and other places - even indicting so that a trial can proceed is near impossible given the bias in the system and the unwarranted deference to police.  One has to wonder what the rest of the world (especially countries where non-whites are a majority) must think of "American exceptionalism."  I would guess, not very much if not open disgust.  Here are article highlights:

If you know St. Louis, or Missouri for that matter, you know that the family of Michael Brown had no chance, and that police Officer Darren Wilson would go free.

St. Louis is a lovely place, but legally it can be a toxic police mixture of the Midwestern love of social order and Border State race-based severity.

The city is in some ways on the most tremulous fault line in the history of race in America: The home of W.C. Handy and the blues, of Chuck Berry and rock 'n roll, of the Dred Scott court decision on runaway slaves.

Not surprisingly, the Missouri state legislature has chosen repeatedly to ignore a landmark U.S. Supreme Court decision of 1985, which held that a police officer cannot use lethal force against a fleeing suspect unless the officer has reason to believe the suspect is armed and an immediate threat to public order. 

Instead, a police officer in Missouri can shoot a person the officer believes to be a fleeing felon. Period. Not to mention that the officer can shoot one who is moving toward him in a threatening manner.

So the real complaint in Missouri on Monday night should not really be with the county prosecutor, however defensive and cloying he may have been in announcing the grand jury's failure to indict the officer who shot the teenager.

It is with Missouri, and America, for thumbs-on-the-scale state laws that the federal government -- from Abraham Lincoln forward -- has only partly ameliorated. 

St. Louis is emblematic of the glory and the tragedy of the racial history of which this case is only the latest example. The city was a licentious, anything-goes river town in which the slave trade flourished, and was run in later years by German-American burghers and scions of the slave-holding South who wanted to preserve order, and the Old Order.

Some laws are a holdover from those days. They made it easy for the grand jury to return a "no true bill" -- that is, no indictment on any charges -- against Wilson.

[L]et's make no mistake: St. Louis is as American, for better and for worse, as a city can get.

After Bizarre Lack of Indictment Ferguson Prosecutor Gives Bizarre Press Conference

Many in the legal profession will say that a prosecutor dead set on an indictment could get a ham sandwich indicted.  Whether the prosecution will prevail at trial is another matter, but getting an indictment is rarely an issue.  Indeed, one Huffington Post article notes that U.S. Attorneys prosecuted 162,000 cases in 2012 and only 11 times did they fail to secure indictments.  Against this background, St. Louis County Prosecuting Attorney Robert McCulloch lashed out at the media, blaming the internet and "the 24-hour news cycle" for the unrest in Ferguson, Missouri.  The situation is at best bizarre.  Here are highlights from an article that looks at how rare it is for a grand jury not to indict:

A St. Louis County grand jury on Monday decided not to indict Ferguson, Missouri, police Officer Darren Wilson in the August killing of teenager Michael Brown. The decision wasn’t a surprise — leaks from the grand jury had led most observers to conclude an indictment was unlikely — but it was unusual. Grand juries nearly always decide to indict.

Or at least, they nearly always do so in cases that don’t involve police officers.

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

Wilson’s case was heard in state court, not federal, so the numbers aren’t directly comparable. Unlike in federal court, most states, including Missouri, allow prosecutors to bring charges via a preliminary hearing in front of a judge instead of through a grand jury indictment. That means many routine cases never go before a grand jury. Still, legal experts agree that, at any level, it is extremely rare for prosecutors to fail to win an indictment.

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”

Cases involving police shootings, however, appear to be an exception.

There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. 

The second is prosecutorial bias: Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.

The third possible explanation is more benign. Ordinarily, prosecutors only bring a case if they think they can get an indictment. But in high-profile cases such as police shootings, they may feel public pressure to bring charges even if they think they have a weak case.

I cannot help but feel that explanations 1 and 2 came to play in this case.  The reality is that an indictment followed by a trial in open court may not have secured the result that many residents of Ferguson wanted, but it would have been out in the open and less subject to criticism and claims of bias for evidence and testimony given behind closed doors.

Darren Wilson Walks, No Indictment

I'd be lying if I said I was surprised at the failure of the Ferguson Missouri grand jury to indict police officer Darren Wilson for the shooting death of unarmed teenager, 18-year-old Michael Brown.  Having dealt with the Norfolk police departments and their internal affairs department (in connection with my own run in with gay bashing cops)and witnessed the disparate treatment of black teens in criminal court, part of me would have been shocked had an indictment been handed down.  I can only imagine the feelings of black parents who must live in dread that their children will be shot down by police officers claiming they "feared for their lives."  In some ways, the Jim Crow days of the South haven't really left us.  Now, instead of lynchings, we have police shootings.  Here are highlights from Salon:

A St. Louis grand jury decided to not indict Ferguson police officer Darren Wilson for the fatal shooting of unarmed 18-year-old Michael Brown on Aug. 9, prosecutor Robert McCulloch announced on Monday night. Wilson has reportedly already begun negotiations to resign from the Ferguson Police Department.

Initial reports surrounding the shooting conflict, regarding whether or not Brown and his friend, Dorian Johnson were threatening Wilson. Several witnesses reported seeing Wilson pull over the two men on Canfield Drive, at which point he grabbed Brown and started threatening him. Brown and Johnson reportedly ran away, at which point Wilson unholstered his gun and fired at least six shots at Brown, who had his hands up in surrender, killing him. Police officials and one of Wilson’s family friends say that Brown was threatening Wilson, and Wilson shot at Brown in self-defense.

The excessive response from the local police prompted a civil rights probe from the Department of Justice, under the leadership of then Attorney General Eric Holder, for a history of racial bias. Also accused of potential bias was St. Louis County Prosecuting Attorney Robert McCulloch, the man responsible for presenting the case against Wilson. Not only does McCulloch have deep ties to the local police department, he also has a history of siding with law enforcement in similar cases. A petition to appoint a special prosecutor for the case organized by Mo. State Senator Jamilah Nasheed collected over 116,000 signatures.

Authorities have been preparing to crackdown on unrest in the aftermath of the grand jury’s decision: businesses have been boarded up, schools closed and barricades erected. The Federal Bureau of Investigations recently circulated an intelligence bulletin warning that the grand jury’s announcement “will likely” lead to violence from extremist protesters. Missouri Gov. Jay Nixon also declared a state of emergency in the St. Louis suburb in preparation for a massive demonstration in response to the jury’s decision.

Michael T. McPhearson, co-chairman of the Don’t Shoot Coalition, outlined goals of his movement: “It must be changing how police and citizens relate to one another. We’re calling for police accountability, police transparency, changing how the police do their work.”

The sad truth is that in many parts of America, if one is not a white conservative Christian, one's life simply doesn't matter - especially to the "godly folk" and their self-proclaimed supporters.   Once again, I find myself ashamed to be an American.