The surprise is that anyone was surprised. Last night, the grand jury looking into the shooting death of Michael Brown in Ferguson, MO, decided there was no enough evidence to indict police officer Darren Wilson, the triggerman. This result was in the cards from the moment the case went to the grand jury. St. Louis County Chief Prosecutor Robert P. McCulloch never wanted an indictment and certainly didn’t want the blame for letting Officer Wilson walk. It was a masterfully rigged process. To begin at the beginning, the Chief Prosecutor had a conflict of interest from the moment Officer Wilson killed Mr. Brown. The prosecutor needs the police to do his job, and he needs to be on very close terms with the police department. The idea that he could be impartial is not beyond the pale, but what is difficult to believe is that his office believed there would be no appearance of a conflict. Then, there is his record in these matters. According to county records, there are five different occasions, including the Brown killing, in which he has sought an indictment from a grand jury in cases where a police officer has shot a citizen. He has never secured an indictment. Once is an unfortunate occurrence, twice a coincidence. Three failures and one starts to think about conspiracies. One can only believe that five times identifies non-indictment as government policy. Next there is the manner in which his office pursued the indictment. In Missouri, the prosecution can opt for a preliminary hearing or a grand jury. In a preliminary hearing, the prosecution presents its case, and the defendant’s lawyers may cross-examine witnesses and may produce evidence. A preliminary hearing is held in open court. A grand jury proceeding does not allow for cross-examination, the defense does not really participate and the grand jury proceedings are secret. It is telling that the British, who invented the grand jury system, abolished it in the 1940s finding that magistrates perform the function better. Mr. McCulloch opted for a secret process, which creates the appearance of a fix if nothing else. The real case against his handling of the whole affair, though, was in the way his office presented the case. Almost all the time, the prosecutor simply gives the grand jury the evidence that there was a crime committed and some clue as to why the defendant may have done it. That is not what Mr. McCulloch’s office did. Every piece of evidence they had made it to the grand jury. Eye witness testimony that contradicted itself in particular clouded the issue. Moreover, there was no narrative from his office as to why the grand jury should indict. Instead, there was a data dump and 12 people without law degrees were told to figure it out for themselves. While it is true that only the grand jurors themselves know what went on in their deliberations, it is equally true that one can deduce from this episode certain facts about the prosecutor, the police and the law. It has been said repeatedly that one can get a grand jury to indict a ham sandwich. The standard for an indictment is very low because the question asked is not whether the defendant is guilty but whether there is sufficient reason to hold a trial at all. Twelve shots fired by a police officer and an unarmed citizen died. A ham sandwich could have argued the case resulting in an indictment. However, one can safely say that if an officer there in future should kill an unarmed civilian and fire 12 or fewer shots, there will be no indictment. One can also conclude that the prosecutor’s office will continue to protect, if not bad cops, inept cops from the consequences of their actions. If the process is not corrupted, if this is how things are supposed to work, then the law itself is to blame. There is no reason why a police officer should shoot at an unarmed civilian and not face trial, if only to clear his or her name. In that sense, Officer Wilson was denied his day in court just as surely as the Brown family was. Justice must not only be done, it must be seen to be done. That didn’t happen here. It is, simply, shameful.
