The protests in Ferguson are about a lot of things: they’re about gentrification and the political inequalities that creates, they’re about stereotypes and the effects these stereotypes have when they’re held by juries and police officers, and they’re about police militarization and how it disproportionately affects specific demographics.
But for all this, the protests do have a proximate cause, the shooting of black teenager Michael Brown by white Ferguson Police Officer Darren Wilson and the subsequent decision not to indict him.
Critics of the protests have argued that not indicting Darren Wilson was the only reasonable response given the conflicting testimony of witnesses and the discreditation of the “hands up, don’t shoot” narrative. The protests, they’ve argued, are ignoring the facts of the case in order to make a politically expedient statement.
What these critics are overlooking is that an indictment is not the same conviction and that a grand jury is not even close to a criminal trial.
In fact, when you apply the standards typically exercised in a grand jury to the case, the failure to indict is so astonishing that the National Bar Association itself has released a statement condemning the verdict.
A grand jury hearing consists only of a jury, a prosecutor and whatever witnesses the prosecutor chooses to call to the stand. There is no judge and no defense attorney, and therefore no one to moderate the evidence the prosecutor chooses to present. What’s more, the proceedings, the vote and the identities of the jurors are all secret, meaning that no one will ever know what happens (unless the judge chooses to disclose it).
Why give the prosecutor this much control? Because the intent of a grand jury is to weed out cases that have no foundation, not to determine the guilt or the innocence of the defendant. They work in secret to save defendants from having their reputation tarnished by a frivolous criminal trial.
The amount of control a prosecutor has makes an indictment in a grand jury trial basically guaranteed. In 2010 (these are the most recent figures available), 11 out of 162,000 cases brought before a grand jury nationally did not result in an indictment. That’s .0068 percent. It’s these kinds of numbers that caused Former New York state Chief Judge Sol Wachtler to remark that a prosecutor could get a grand jury to “indict a ham sandwich.”
Usually, prosecutors take advantage of their power to create a very focused case with carefully chosen evidence designed to make the jury indict on a particular cause. McCulloch, however, did not do this. He presented “every scrap of evidence” he could find to the grand jury and allowed them to choose from five different verdicts, adding confusion about the law to confusion about the facts.
McCulloch made this decision in light of accusations that, as the son of a police officer killed on duty, he would prosecute the Darren Wilson case half-heartedly. Supposedly, it would cut back on the subjectivity of the hearing. Yet abdicating his duty as a prosecutor and thrusting the job of sifting through facts upon twelve people who do not study law for a living was in itself quite a half-hearted prosecution.
The people of Ferguson gave no support to McCulloch as the prosecutor. Over 70,000 of them actually signed a petition demanding that he recuse himself as prosecutor in this trial due to his bias. His refusal to step aside in the case alone would cause mistrust in the proceedings. Friday, November 21, McCulloch was reported to have made a comment to the jurors, “I think you are going to make the right decision, I think you are very bright.”
But doesn’t presenting more evidence help the cause of justice? Not necessarily. The legal system is, after all, constructed around the notion that people making the decision will not be equipped with the knowledge or the training to sift through a mountain of facts themselves.
That’s why a normal trial has an advocate for both sides and a judge to filter out evidence that would unduly prejudice the jury. The system is adversarial by design so that it can present the jury with alternate narratives for interpreting the evidence (or in the case of a grand jury, a single narrative). A prosecutor that takes it upon themselves to be judge, prosecutor and defendant is failing that system. A prosecutor that doesn’t advocate for anything is doing even worse.
There was one key witness which McCulloch quoted during his nationally televised statement of no indictment. Witness 10 stated that “One describes his [Michael Brown] movement towards Officer Wilson as a ‘full charge’”. This testimony alone was the only witness singled out by the prosecutor, and was the only testimony that agreed with Darren Wilson’s description of the events that took place before the murder of Michael Brown.
At any rate, we can’t have special treatment for Officer Wilson. Simply put, a special prosecutor should have been assigned to the case given McCulloch’s clear bias.
Had the grand jury indicted Wilson, would it have ultimately resulted in a conviction? Probably not. But the Ferguson community deserved an opportunity to see Officer Wilson on trial. That, after all, is part of the due process of law.