Prosecutors in the U.S. routinely brag about being able to indict a "ham sandwich," so the failure of a St. Louis County grand jury to indict Ferguson, Missouri police officer Darren Wilson begs some puzzling question and reveals quite a bit about what passes for justice in America.
As the ham sandwich saying suggests, indictment in a U.S. court is nearly a statistical certainty. Yet Wilson somehow emerged from the grand jury unscathed for the shooting of unarmed teen, Michael Brown. Indictments are returned in an estimated 98 to 99 percent of cases in the U.S. In federal courts the rate is even higher. U.S. attorneys prosecuted approximately 162,000 federal cases in 2010, the most recent year for which there is data. Grand juries failed to return an indictment in only 11 of them.
"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."
Yet in St. Louis County, with the whole world watching, this is precisely what happened.
After months of meaningless speculation by media outlets, the openly choreographed grand jury proceedings concluded with a vote of no true bill. Various talking heads weighed in on the matter as if a legitimate process was playing out, but it was apparent from the very beginning that the process was anything but legitimate.
St. Louis County Prosecutor Robert McCulloch came to the case with a strong law enforcement background and a recognized predisposition to side with the police. He enjoys a wide reputation as a police apologist who exclusively sides with law enforcement, especially when it comes up against the minority community. Citing this reputation, many local community leaders sought to have him replaced with a special prosecutor. He steadfastly refused.
McCulloch compromised the Ferguson grand jury proceedings from the start. It was obvious from the beginning that McCulloch was merely going through the motions and that an indictment against Wilson was not actively being sought. Well-timed, illegal grand jury leaks bolstered Wilson's case in the media and as the matter wound down, the highly militarized police presence, along with the Missouri governor's declaration of a state of emergency, left no doubt as to the eventual outcome.
In America, grand juries are tools of the prosecution. Grand jurors are presented with the prosecutor's version of events, normally with no opportunity for exculpatory evidence to be introduced. The only evidence presented is what is necessary to establish probable cause for the specific charges being sought. In short, it is a one sided affair which is why they almost always results in the prosecutor's desired outcome. There is more than a bit of truth in the assertion that even a ham sandwich is not safe from a determined prosecutor.
The grand jury weighing charges against Darren Wilson operated quite differently. McCulloch, in a purported desire to present "all of the evidence," allowed an abundance of exculpatory factors to be presented. McCulloch also declined to recommend specific charges to the grand jury. Prosecutors normally walk a jury through the charges they are seeking, breaking down their elements and explaining why they are deserved. McCulloch instead left jurors to basically sort things out for themselves. McCulloch cited his failure to ask for a specific charge against Wilson as part of his effort to "put everything" before the grand jury.
In reality, a competent first year law student could have obtained an indictment against Wilson. Various media outlets cited several eye witnesses who saw Brown surrender prior to being gunned down by Wilson. Their testimony would have easily satisfied the relatively low burden of proof required for an indictment to be returned, which would have then allowed the matter to proceed to trial. McCulloch's refusal to follow this simple and proven path to indictment is nothing less than sabotage.
Indeed, the number of witnesses has been cited by some observers as another way in which the likelihood of indictment was eviscerated. Instead of calling only a limited number of witnesses to offer inculpatory evidence, McCulloch announced that "all witnesses with any relevant evidence" were being summoned to testify.
McCulloch's repeated references to fairness struck many legal observers as odd. Grand juries in the U.S. are vehicles for prosecution, not searches for a full and complete account of what actually transpired. The aforementioned near statistical certainty of indictment is a testament to this fact. Yet McCulloch maintained that the empaneling of this grand jury was necessary for a "full and fair" investigation.
Grand jury proceedings in the U.S. are not designed to be investigations or factual inquiries. Rather, they are an integral part of the process of obtaining convictions. The prosecutor is not on a quest for the truth, but instead singularly focused on obtaining a conviction. Often, it is conviction by any means and at any cost. Yet when McCulloch announced the grand jury's decision, he oddly asserted, "The duty of the grand jury is to separate fact and fiction."
While most reporters and analysts covering the events in Ferguson want to perpetuate the charade of a fair process, the reality is that McCulloch, by his own admission, ran this grand jury in a highly unusual fashion. More importantly, it was in a fashion that could only benefit the accused. Yet nearly all of the talking heads on TV weighed in on the matter as if the eventual outcome was ever seriously in doubt.
The prosecutor, as part of the prevailing power structure, did his level best to protect the police, another element of that same power structure. In doing so he acted not only to the detriment of the deceased, but also to everyone who blindly placed their faith in the legal system and expected an impartial outcome.
It is possible that Darren Wilson may have been justified in shooting Michael Brown, but the way in which Bob McCulloch chose to conduct this grand jury goes a long way towards ensuring that the truth will never be known. To many, the relative culpability of Wilson is irrelevant. What caused the killing of Michael Brown to become a touchstone is the daily reality of police assuming the role of an occupying army, treating civilians with hostility and disdain. With prosecutors like Robert McCulloch refusing to hold them to account, militarized police will only become more emboldened to harm with impunity the public they purportedly serve.