The Strange Ferguson Grand Jury

You know the fix is in when a suspect who shot an unarmed man voluntarily provides four hours of un-cross-examined testimony to a grand jury without taking the Fifth.

On Aug. 9, Ferguson, Missouri Police Officer Darren Wilson gunned down 18-year-old African-American Michael Brown. Since that fateful day, people across the country have protested against racial profiling, excessive police force, and the failure of the criminal justice system to provide accountability.

In a normal grand jury proceeding, the prosecutor presents evidence for a few days and then asks the grand jurors to return an indictment, which they nearly always do. Of 162,000 federal cases in 2010, grand juries failed to indict in only 11 of them, according the Bureau of Justice Statistics.

The standard of proof for a grand jury to indict is only probable cause to believe the suspect committed a crime. It is not proof beyond a reasonable doubt, which is required for conviction at trial. Yet McCulloch's team presented testimony and documents to the panel for three months, evidence not subjected to adversarial testing by cross-examination.

Justice Antonin Scalia explained the function of the grand jury in United States v. Williams as follows:

"[I]t 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. [citations omitted] 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."

Every principle Scalia cited was violated in this case. The grand jury was asked to determine whether Wilson acted in self-defense. Wilson was allowed to give four hours of self-serving testimony to the grand jury. And for three months, prosecutors presented both incriminating and exculpatory evidence.

The prosecutor did not ask these grand jurors for an indictment. They were left to sift through the evidence on their own, with no prosecutorial guidance about what to charge. Indeed, the transcripts indicated that prosecutors asked Wilson gentle, leading questions designed to bolster his self-defense claim. For example, a prosecutor told Wilson, "You felt like your life was in jeopardy," followed by, "And use of deadly force was justified at that point, in your opinion?" But prosecutors rigorously challenged witnesses who contradicted Wilson's testimony.

As the grand jury is a secret proceeding, with only the grand jurors and the prosecutor present, the grand jurors did not hear any cross-examination of the officer's testimony, or that of other witnesses (which is customary in an adversarial jury trial).

These grand jurors, who were nearing the end of their term, which began in May, knew the drill, since they had sat on several other cases. They knew the prosecutor always asks for indictments. Thus, when the prosecutor handled the Wilson case in a radically different manner, this signaled to the grand jurors that they were not expected to indict. And they did not.

Another unorthodox aspect of this case was McCulloch's announcement of the grand jury's decision on national television. Sounding like a defense attorney delivering a closing argument in a jury trial, McCulloch characterized and analyzed the witness testimony in the light most favorable to the officer.

McCulloch has a history of bias in favor of police involved in altercations with black men. But, ignoring the pleas of 7,000 residents in and near Ferguson who signed a petition, McCulloch refused to recuse himself in the Wilson case.

McCulloch had mischaracterized testimony in a 2000 case in which two black men were killed after officers fired 21 shots at them. As in the Wilson case, the reasonableness of the officers' use of deadly force was critical. In the 2000 case, the officers said the two victims were driving toward them, trying to run them down, and McCulloch claimed that all the witnesses corroborated the officers' story. A later federal investigation, however, determined that the car was not moving forward, and that only three of the 13 officers said the car was moving forward.

Likewise, Wilson's claim that Brown was "charging" at him when the officer fired the fatal shots into the top of Brown's bowed head was critical to the reasonableness of Wilson's use of deadly force. When McCulloch announced the grand jury's decision, he characterized the witnesses who testified that Brown was "charging" the officer as believable, but dismissed the testimony of witnesses who said Brown was surrendering. McCulloch sounded like a defense attorney, not a prosecutor charged with representing "the people," including Brown.

Wilson fired 12 shots at Brown, six of which struck the teenager. There was a great deal of contradiction among the witnesses, including whether Brown's hands were up or down when Wilson shot at him. That is precisely why there should have been an indictment and a jury trial. Jurors would hear all of the evidence, subjected to adversarial testing by cross-examination. They would assess the credibility of the witnesses, and determine whether Wilson had committed any crime(s) beyond a reasonable doubt.

After reviewing the transcripts and evidence in the Wilson case, San Francisco Public Defender Jeff Adachi noted: "Dorian Johnson, the key witness who was standing next to Brown during the encounter, provided strong testimony that called into question Wilson's claim that he was defending his life against a deranged aggressor. Johnson testified that Wilson, enraged that the young men did not obey his order to get on the sidewalk, threw his patrol car into reverse.