The Ferguson Grand Jury Result

FIRST, there is no question in my mind but that the St. Louis County prosecutor fashioned the presentation to the grand jury so that it gave the result he wanted – a no true bill.  That is easy to do because the proceeding is not an adversary one, which is to say there is no representative present to question the prosecutor’s evidence, to test its veracity to emphasize another theory. In short, a grand jury proceeding is not a trial and is not charged with deciding guilt or innocence.  I think McCulloch, the prosecutor, has remarked in the past that he could get an indictment against a ‘ham sandwich’.

          Cases of this nature need to be tried.  The system must perform its essential function of deciding the truth of a matter in a fair contest that is public.  When the prosecutor has a point of view, in most instances a view that the accused should be charged, he or she can fashion the presentation with a free hand, limited possibly only by the judge – whose role is extremely limited. 

          In the absence of an adversarial contest where contending parties are represented and the proceeding is public,  a grand jury that decides guilt or innocence is a star chamber, long ago discredited as a means to just governance.  The litany of evidence supposedly presented to this grand jury is a description of what one would expect to be presented in the course of a trial where the issue is guilt beyond a reasonable doubt.  When that evidence is presented, as in the Ferguson grand jury, it is a thinly disguised effort to get the result the prosecutor wants. 

          The question of “probable cause” – the only legitimate issue for the grand jury – is a simple one.  Did unarmed Michael Brown die from bullets fired by Officer Wilson? That is known and there is no contest that it is true.  Was it a crime? The definition of homicide ( pretty universal throughout American jurisprudence) is death by a human hand.  Once again, Wilson shot Brown and Brown died for those shots.  But “homicide” of itself is not a crime.

          Is there evidence that the homicide was not privileged, i.e. excused because it was in self-defense. There are two pieces of undeniable evidence that suggest that self-defense was not involved: Brown was unarmed and Wilson fired six times hitting Brown in the body each time. That is all the grand jury need know to find there is probable cause to believe a crime has been committed.

          Whether the evidence is sufficient to conclude beyond a reasonable doubt that Wilson acted justifiably in self-defense is a matter for the petit jury after a trial.  Of course, a trial would have to do something about the obvious bias of the prosecutor or we end up at the same place- an unjust result.

          This proceeding was cockeyed.  It is one in which usually the prosecutor has decided there should be an indictment and he presents his evidence to support that result.  The evidence is, also usually, the bare minimum needed to achieve the purpose as a matter of law. Here, McCulloch’s credibility is in serious question given his early resistance to even convening a grand jury; his obvious bias against blaming Wilson, the cop, and his history of manipulating grand juries ( See Charles Pierce, Esquire, RSN post this date).

          Clearly, justice requires a prosecutor do an impartial analysis of the evidence available and decide whether it merits grand jury consideration of the question of probable cause.  That is not what happened here.  The grand jury was convened by Robert McCulloch to be cover for a decision he already made that there wouldn’t be an indictment. Thus, people in Ferguson have a reason to be angry – if not to burn their own businesses and streets.

          Finally, the New York Times and CBS news point out that there are something like 162,000 grand juries convened in criminal cases in the average American year this country.  There is, on average, only eleven (11) of those in which the grand jury fails to return an indictment. Darrel Wilson, on these facts, should have been required to stand trial on a charge of criminal homicide.


          SECOND, Darren Wilson, the cop who shot Brown, testified before the grand jury. His story went entirely unquestioned, his veracity not challenged. There are many, many people accused of crime that would jump at the chance to tell their story to a grand jury unfettered by cross examination. It’s a ‘get-out-of-jail-free’ card.

          Wilson, having been exonerated by a grand jury can now be interviewed for media consumption. Of course, the media gives him every opportunity to tell his story similarly unfettered by awkward questions which, even if asked, can be avoided for the lack of an oath or a judge. That is exactly what is going on as I write.

          THIRD, the trashing, burning, looting response among those who supposedly were protesting the failure to indict Wilson may as well have been carried out by McCulloch’s personal cadre. That this is a possibility is suggested by the Governor’s failure to deploy the National Guard troops at his disposal and ready for riot duty on the night the result was announced.

          It never makes any sense that people damaged by some outrageous injustice demonstrate their outrage by pillaging their own neighborhood.  It is a predictable phenomenon that a cunning protagonist can manipulate for his own benefit. Certainly the powerful have nothing to fear. The damage is done to the very community they have oppressed. The images conveniently demonstrate the protestors are unworthy. It is always awkward when the victims of oppression express their indignation peacefully, with dignity and without vulgar violence.

          FOURTH, how come this happens – ‘this’ being a grossly ugly manipulation of the judicial system to achieve a result typically seen in Fascist regimes?  It appears the basic reason is that, notwithstanding the dominance of numbers, Black people in Ferguson don’t vote. There is only one Black city councilman and therefore there are only a few black cops on a large force.  That would seem to extend the Fascist analogy to consider what we know about the rise of Mussolini and Hitler. The people sat idly by.

          As I understand it, Ferguson is a township within St. Louis County and the general population of that county elects McCulloch.  Maybe every vote in Ferguson cast against McCulloch would not defeat him.  But, if every Black vote in Ferguson voted for leadership that would take him on, McCulloch’s brand of hubris could be reined in and perhaps circumscribed by moral limits.

          Here may be a broader lesson for America this year.  Watch what happens to our country now that the Robert McCullochs of the nation take over Congress and more statehouses. Democracy, it turns out, is not an automatic deposit to your account; it is not a gift from heaven; it is not a natural phenomenon.  It takes some effort – at least it takes the exercise of the right to vote.  That, one can hope, might mean a long look at why American cops carry guns.


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  1. Stephen Kafoury
    Posted November 26, 2014 at 6:27 pm | Permalink

    You have expressed in lawyer-like manner exactly what I have been saying. Unfortunately, the press has focused on the protests, ignoring both the reasons for the protests, and the prosecutorial malpractice that exacerbated the situation. A trial may well have exonerated Wilson, given Missouri’s law that protects policemen, but at least the open process would have kept folks from feeling that a secret trial had hidden the truth.

  2. Walter Ballin
    Posted November 26, 2014 at 6:42 pm | Permalink

    Excellent blog, Joe!!! What is just as bad as the murder of Michael Brown and the murderous cop getting off, is that so many people don’t vote. As you pointed out, most likely with more Blacks on the city council, Ferguson would have more Black cops. Probably the standards to be a cop in Ferguson would also be higher. People not voting is a terrible problem all over the country. The majority of the people who regularly vote are older white people, which is hardly reflective of the majority of the people . There’s gotta be a huge mass movement to register and vote. It’s so disgusting that people don’t exercise their right to vote, considering that people risked their lives and even got killed for this right, and this happened in our lifetime.

    Happy Thanksgiving!

  3. John Davids
    Posted November 27, 2014 at 8:49 am | Permalink

    It is clearly prosecutorial malpractice. But, of course, there is no remedy.
    Perhaps the US Justice Department will be able to get some sort of justice, but I am not holding my breath.
    This is also an excellent case study on eye nitwit testimony.

  4. Keith Roberts
    Posted November 28, 2014 at 7:30 am | Permalink

    I agree with a lot of what you said, and would add that Wilson’s testimony clearly demonstrates the racism that, at a minimum, is involved here. Wilson was scared of a black teenager. He would not have been scared of a white teenager, and he would not have shot him. I have known black cops who felt the same way, and black bankers who were frightened by groups of black teenagers. I am less racist because ALL teenagers, in groups, frighten me, but I am still racist because am more frightened by black teenage groups. All of this, even if sometimes reasonable, amounts to racism, pure and simple.
    But I do think your first point is in logical error. The party that could not cross examine was Wilson. The departure from normal procedure that you outline benefited Wilson, but not because he was deprived of the right to cross examine. Had he been able to cross examine, it would have led to the same result. The problem, I think, is that McCullough did not do any cross examination. He was not deprived of the right; he chose not to do so.
    Nor am I entirely sure that saving Wilson was his basic goal. I think he stayed on the case out of pride, and the wish to avoid shame. I think that then, his basic goal was to wash his hands of the decision–like Pilate–and that’s why he made the presentation he did. There’s actually not so much wrong with his dumping all the testimony on the Grand Jury–if prosecutors did that more often, the number of no bills would surely be greater.