Op-Ed: Lesson Learned from Ferguson -- How Not to Indict a Police Officer
Using the grand jury to aid the defense, rather than as an instrument of the prosecution, is one way to manipulate the justice system
After receiving a set of facts in criminal law class, my professor asked me, “Mr. Williams, what is your theory of the case?” I was expected to articulate how I would use the facts to convict or exonerate my client in this make-believe case. So what theory of the case did prosecutor Robert McCulloch put before the grand jury to get an indictment of police officer Darren Wilson, for the killing of Michael Brown in Ferguson, MO?
McCulloch would have us believe that he only made sure the grand jury “saw all the evidence,” as if evidence alone is the ultimate test of fair play in the American justice system. But the facts never speak for themselves. There is always a guiding story that will tend to urge the trier of the facts toward a desired conclusion. In this case, the prosecutor guided the jury of nine whites and three blacks to a conclusion that Wilson was innocent, and Brown was the guilty party.
Let’s examine first the role of the grand jury. Grand juries decide if there is enough evidence to indict a defendant, that is, whether a full trial should take place before a petit (small) jury of 12 people where the evidence will be examined, the witnesses cross-examined. Historically, the grand jury has been called the tool of the prosecutor because only one side of the evidence is presented: that which the prosecutor feels is important to achieve the indictment.
But what if the prosecutor decides to present a slice of evidence, and frame it in a way to convince this same grand jury that the defendant should not go to trial; to, in essence, exonerate the defendant? What would he have to do?
Just study the Ferguson grand jury experience of Darren Wilson and see how experts can turn everything around, all under the umbrella of good ole American justice.
First, make the grand jury process a trial, instead of a hearing to determine probable cause. Over 27 days, and 60 hours of presentation, the grand jury saw only what the prosecutor wanted it to see: which witnesses would be brought in, and suggest which ones were credible by the questions asked; which experts in blood, toxicology and ballistics were heard; which facts were emphasized, which ones minimized.
Even the defendant Wilson spent 4 hours before this grand jury, answering questions put by the prosecutor. This should be our first warning, because no defense attorney would allow his client to go before a grand jury for that long without a grant of immunity, waiving his right against possible self-incrimination, and unaccompanied by counsel … unless he knew that the prosecutors were indeed on Wilson’s side, a secret defense team. Wilson’ lawyers must have known that there would be no cross-examination of the experts, of the witnesses, and most importantly, of Darren Wilson himself, at any subsequent trial.
In the end we heard the prosecutor’s theory that guided the presentation of “all the evidence.” At the press conference, McCulloch told a story of Michael Brown being stopped by the police, who, after careful observation, allegedly saw stolen property in Brown’s hand; that Brown then reached into the car, struggled with officer Wilson, was shot in the thumb; ran away from the cop and more than 100 feet away, turned and “walked or ran” towards the cop who had his gun drawn; suggested Brown was like some enraged animal and was shot six or seven times, including once in the top of his head. All presented in a calm, objective delivery, recounting along the way how unreliable some of the witnesses were if their story contradicted this story.
I thought I was listening to the lawyer for Darren Wilson and not the man charged with convicting the shooter for murder or manslaughter. There was no consideration of how incredible Wilson’s story sounds, which is what the petit jury would decide: why an unarmed teenager, who had already been shot and who ran away presumably in pain and bleeding, would turn and charge the same cop who clearly had the upper hand, and who was then shot several times, even in the top of his head, suggesting perhaps that Brown was shot while he was on the ground.
In face of that kind of presentation by the prosecutors in the case, it would take a runaway grand jury to indict Wilson. And even with an indictment, given the mindset of the prosecutorial team to show Wilson in the best possible light, what jury in St. Louis County would convict the cop in a full trial?
Yes, in order to avoid the trial of Darren Wilson for the killing of Michal Brown, the prosecutor simply staged a show trial to set him free. As one youth on the scene called it after the announcement of no probable cause, “People in power will protect their own.” The question for America is who will protect young black and brown teenagers from police like Darren Wilson, and the public officials who cover for them?
Throughout New Jersey, parents with children of color are asking that same question every day. Must we be ever ready to demonstrate and make passionate appeals for justice? In Ferguson, prosecutor McCulloch told us to go ahead and demonstrate; it’s your right as an American citizen. Rights indeed.