When the grand jury failed to indict Officer Darren Wilson this week, Robert McCulloch got exactly what he wanted. And, in the process, the St. Louis County prosecuting attorney handling the case where the white Ferguson police officer shot dead the unarmed African American teenager Michael Brown fooled us all. After a review of the 5,675 pages of transcripts released from the grand jury deliberations, it is becoming increasingly clear that McCulloch probably had little intention to ever deliver an indictment of Officer Wilson. Instead, it looks as if he used the grand jury process as cover to avoid the political fallout of taking an unpopular stand. Back in August, when the prosecutor first chose …
When the grand jury failed to indict Officer Darren Wilson this week, Robert McCulloch got exactly what he wanted.
And, in the process, the St. Louis County prosecuting attorney handling the case where the white Ferguson police officer shot dead the unarmed African American teenager Michael Brown fooled us all.
After a review of the 5,675 pages of transcripts released from the grand jury deliberations, it is becoming increasingly clear that McCulloch probably had little intention to ever deliver an indictment of Officer Wilson.
Instead, it looks as if he used the grand jury process as cover to avoid the political fallout of taking an unpopular stand.
Back in August, when the prosecutor first chose to engage the grand jury process — rather than exercise his prosecutorial discretion and charge Wilson himself — it looked like he was taking the high road. But he knew exactly what he was doing.
He clearly knew how hot of a political potato the case was. He knew how much of a no-win situation his actions could be perceived by both sides.
He could have indicted Wilson on his own — certainly within his scope as prosecutor, something he does dozens of times each year. But if he did so, based on the mountain of evidence that showed how the officer confronted, pursued and ultimately gunned-down Brown in the streets of Ferguson that summer afternoon, he would be attacked by his friends in law enforcement and by the local political establishment for abandoning them. He is supposed to have their backs, especially against the “thugs” threatening the good citizens of Ferguson.
However, if he chose not to indict Wilson on any charges — ranging from first-degree murder all the way down to involuntary manslaughter — he would surely command the wrath of protestors and civil rights activists claiming his motives were racist.
By the way, they were not. They were just cowardly.
It is a well-documented practice that when a prosecutor engages a grand jury to seek an indictment against a criminal suspect, the prosecutor gets exactly what he seeks — an indictment. It happens in more than 99% of the cases, according to the Bureau of Justice Statistics. In more than 162,000 federal cases in 2010, grand juries declined to return an indictment in just 11 of them. That’s 0.006790123457%.
The standard required to return an indictment by a grand jury is painstakingly low — “probable cause” — rather than the significantly higher “proof beyond a reasonable doubt” standard required for a conviction in a criminal trial.
That’s why Sol Wachtler, the former Chief Judge of the New York Court of Appeals, said in 1985 that “district attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.'”
Unless they never wanted them to.
You see, McCulloch surely knew that he had a fairly low, two-part test to indict any suspect — cop or not. First, there must be minimal evidence that a crime has been committed and that the suspect played a role in that crime. Second, a prosecutor needs to believe that he has a strong chance of winning if the case ultimately goes to trial.
On the first point, there was ample evidence to show Wilson shot and killed Brown, and that the events raised significant legal questions as to the sequence and motivation of the shooting. So it would be reasonable in a trial to ask a judge, a jury and a legal process to determine whether Wilson broke any laws and should be held accountable.
Still, it could be argued that even if McCulloch believed that there was enough evidence to charge Wilson in the shooting, that it would be difficult, if not impossible, to ultimately convict the officer in a full-fledged criminal trial. There was certainly ample, conflicting evidence that any competent defense lawyer could exploit to create “reasonable doubt.”
So, if McCulloch sincerely believed that he could not win in a criminal trial, he should have shown the integrity back on August 20 and said so, taking the political hit like a professional by publicly declining to indict. Folks may not have agreed with him, but at least they would have respected him.
Instead, he punted the call to a grand jury, systematically engineering a process to ensure that the jury had no choice but return a “no true bill,” or no indictment of Wilson.
Rather than present them with a streamlined packet of evidence needed to indict — which is common practice for just about every other district attorney in the country — he instead flooded them with hundreds of pages of conflicting evidence and more than 70 hours of confusing testimony from 60 witnesses.
The razzle-dazzle.
Rather than guide them toward that “ham sandwich” of an indictment — which at that point of the process is exactly his job — he apparently made sure his team of deputies did everything possible to muddy the waters.
In fact, MSNBC’s Lawrence O’Donnell points out that on September 16, early in the grand jury process, one of his assistant prosecutors handed the jurors a copy of a 1979 Missouri law that purportedly explained how a police officer could pursue and use deadly force against a fleeing felon.
However, that law was ruled unconstitutional by the United States Supreme Court in 1985. Every first-year law student would know that.
Oops.
Near the end of the proceedings, just weeks before they were to issue their decision, the attorney later told the grand jury to “ignore” her earlier instructions, “There’s something in it that’s not correct.” But she never told them what that was.
So rather than take the hit back in August, he used the grand jury for political cover. He could just say: “See, it was the grand jury, not me, who said there wasn’t enough evidence for an indictment. They did it, not me. I was just seeking the truth.”
The mis-direction.
And then, by releasing the full transcripts — something he announced he’d do before the jury heard its first minute of testimony — he ensured that he would be applauded as being transparent and open.
Rather than present a streamlined case, he overwhelmed them with an avalanche of everything, under the guise of “complete disclosure.”
My Dad used to call that pulling “the okey-doke” — knowingly misdirecting or deceiving someone. And it worked.
It is clear prosecuting attorney Robert McCulloch never had any intention of indicting officer Wilson. Never.
And, in the end, he got just what he wanted.
— Bryan Monroe is an author, award-winning journalist and former Washington Editor for CNN. He was the president of The National Association of Black Journalists (NABJ) from 2005-2007, editorial director of Ebony and Jet magazines and assistant vice president/news at Knight Ridder. In 2005, he helped lead the team at the Biloxi (MS) Sun Herald that won the Pulitzer Prize for Public Service for coverage of Hurricane Katrina. You can follow him on Twitter at BryanKMonroe and online at about.me/bryanmonroe.
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