On November 24, 2014, I remember sitting
in front of my television waiting on a decision from the grand jury in the
Michael Brown case. When St. Louis
County Prosecuting Attorney Robert McCulloch began his press conference, I had
a feeling that the grand jury would not indict Darren Wilson. When, after seemingly two hours of
discussion, he finally announced that the jury had reached a decision not to
indict Wilson, I did not have an immediate reaction. I was not surprised, or mad, or sad, or
disappointed, or frustrated. I was
completely void of emotion because I had no expectations—good or bad. I have developed this mechanism of coping based
on many years of being disappointed in our judicial system. I remember watching the Rodney King assault
on television years ago and thinking that justice would surely be served. In my naïve mind, the officers would be
prosecuted and jailed because their actions were actually recorded. How could they not pay for their behavior? I was wrong.
In 2009, I remember hearing about how
Oscar Grant, an unarmed black
male, was murdered by a police officer.
The officer was convicted of involuntary manslaughter, but the evidence
presented seemed to suggest that a more serious conviction should have been
upheld. In 2012, I remember watching the
Trayvon Martin trial and believing that his killer would be brought to
justice. You can probably guess what
happened, right? His murderer was
acquitted and became a semi-celebrity.
These are but a few of the reasons I have lost faith in the criminal
justice system. So, with Michael Brown,
I just listened to the announcement and then started reading blogs, websites,
statuses, and anything I could regarding the decision. Because I do not practice criminal law, I was
mostly interested in learning about grand jury proceedings from experts on the
subject matter, i.e. prosecutors, defense attorneys, judges and other criminal
law experts.
A grand jury is a group of people who are
selected and sworn by a court. In this
case, the grand jury consisted of twelve jurors—nine Caucasian Americans and
three African Americans. Grand juries differ from trial juries in that they only
determine whether a person should be
indicted, or charged with a crime. The
burden of proof in this proceeding is probable cause, which is a relatively low
legal burden. A grand jury proceeding (like the proceeding that recently
concluded in the Michael Brown case) usually involves members of the grand jury
listening to evidence presented by the prosecuting attorney(s). Usually, the accused’s attorney is not present.
I talked to some of my colleagues who
are either criminal defense attorneys or prosecuting attorneys, and was
informed that prosecuting attorneys can usually obtain an indictment in most
cases. Remember: an indictment just means that a person can be charged with a
crime; the guilt and innocence phase comes much later in the process.
Because the jury did not return an
indictment, despite there being plenty of evidence to suggest that Wilson broke
the law, many folks believe that McCulloch did not do his job. This idea is called prosecutorial abuse and
is a real phenomenon, unfortunately. If
you had the chance to watch McCulloch’s press conference following the grand jury
decision, it was difficult to determine his role. Was he the prosecutor or Wilson’s defense
attorney? During the grand jury
proceeding, McCulloch presented all evidence—both for and against charging
Wilson. This was not his job and it
makes people question his motives. Was
he trying to present evidence in a way that would encourage the grand jury to
not indict Wilson? If you read the
transcript from the grand jury hearing and listened to the press conference
following the decision, you could easily come to this conclusion. This is troubling on a number of levels.
I am not an expert on police protocol,
but I believe Wilson could have handled the situation with Michael Brown in a
much better manner. Had he dialed down
his aggression towards an unarmed man, maybe Michael Brown could be enjoying
his family today. Wilson testified that
Michael Brown attempted to grab his weapon during an exchange while he was
still in his police car. He also
indicated that Michael Brown was bigger than him and essentially that he was
afraid for his life. At some point
common sense should kick in. If he felt
so intimidated and overmatched, why didn’t he wait for reinforcements before
trying to arrest Brown? Also, he
admitted that he discharged his weapon twelve times—yes, I said twelve
times. That seems like use of excessive
force especially considering that Brown was unarmed. Wilson testified that he was not carrying a Taser
gun that day because it was uncomfortable to do so. Additionally, he testified that he did not
use mace on Brown because it could have backfired on him. He testified that his baton was not available
for him to use, so he resorted to deadly force. That sounds like excessive force to me, which
is why the grand jury not indicting him is puzzling.
Grand jury proceedings are designed to be
one-sided. Typically, only the prosecuting
lawyer, judge, members of the grand jury and witnesses are present during the
proceedings. When the prosecuting
attorney calls witnesses to the stand to testify, the witnesses are provided an
opportunity to testify without being cross-examined by the opposing
attorney. Cross-examination is a process
whereby attorneys are allowed to interrogate a witness called by his or her
opponent. In many grand jury proceedings,
the accused does not testify. But, in
this case, Wilson testified for four hours about the circumstances leading to
the untimely death of Brown. Imagine how
easy it was for Wilson to describe the circumstances leading to Brown’s death
in his own terms. Imagine how he would
be able to couch the incident in terms of how he was afraid for his life
and how he followed proper protocol.
Also, understand that nobody could interrogate him.
As a civil lawyer, I cannot begin to
explain how many times I have interviewed potential witnesses at my office
(when the opposing attorney could not interrogate them) and witnessed their
calm demeanor and confident tone of voice.
After the meeting, you (sometimes) believe the witness is ready to proceed.
Then, when the witness appears at a deposition (another court proceeding) where
the opposing attorney is able to cross-examine him, the witness struggles and often
sings a different tune. I have seen
people who are telling the truth be made to look less than credible under the
cross examination of a skilled advocate.
I say all that to say that Wilson was on easy street at the grand jury
proceeding. Under normal circumstances,
this one-sided proceeding would not benefit the accused because the prosecutor
would be actively pursuing an indictment—you know, doing his job. However, if the prosecutor is not doing his
job, the proceeding can actually benefit the accused. In this case, I believe that McCulloch’s
behavior actually benefitted Wilson. If
he were truly innocent of any wrongdoing, a trial jury would have found that he
was innocent. Because of McCulloch’s behavior,
we will never know.
What will happen next? A number of things could happen, but it is
unclear at the moment exactly what will happen next. The federal government is investigating
Wilson to see if he violated federal civil rights laws. Upon the conclusion of this investigation,
the federal government could charge Wilson with a federal crime. However, it is unlikely that this will happen
because the burden of proof in a federal case is higher than that needed to
proceed with a case against Wilson on the state level. Brown’s family could sue Wilson in a wrongful
death lawsuit. This type of lawsuit
could potentially allow the Brown’s a chance to recover monetary damages from the
Ferguson Police Department and/or Wilson individually. Despite this being an option, police officers
are afforded legal defenses that could make this effort nearly impossible to complete. I am certain people will continue protesting
and complaining about how the system is unfair.
People will talk about how broad changes to the system are needed—people
will be angry, but ultimately nothing is likely to change in the near future. The kind of change needed to undue or at least
mitigate the damage of years and years of institutional racism, prosecutorial
abuse and excessive force is unfathomable.
As President Barack Obama so eloquently
said, “we need to recognize that the situation in Ferguson speaks to broader
challenges that we still face as a nation.”
Only time will tell whether we make the
changes that are clearly necessary, or whether we will forget about Michael
Brown as soon as his name is no longer uttered by the media.
Peace
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