As a former prosecutor who has worked in the Grand Jury Unit, no words can express my dismay and disgust at how St. Louis prosecutor Robert McCullough handled the presentation of Michael Brown’s killing to the grand jury. There is distrust in the African American and other minority communities at how the criminal justice system appears stacked against them. Actions or lack of actions taken by the St. Louis prosecutor only substantiate those claims that the system is often rigged against African Americans. Whenever there is a flawed system, you will receive flawed results.
The question that many ask is what was wrong with presenting every piece of evidence, including reliable and unreliable witnesses to the grand jury for their decision. Well, first the grand jury is not a trial. The saying among prosecutors and defense attorneys is that a prosecutor could indict a ham sandwich. What must be added to that sentence is “if they want to indict.” Prosecutors take cases into the grand jury for one purpose—to obtain an indictment. And the legal standard is probable cause. Probable cause is a very low standard. It only means is there evidence that a crime occurred and who committed the crime. Prosecutors, in most cases, take in to the grand jury only the minimal testimony to establish whether probable cause exists to issue an indictment and arrest warrant. They also present and argue to the grand jury the charges that the evidence shows. And there is not a requirement or necessity for a prosecutor to present exculpatory evidence which may show the suspect was not guilty of a crime. That is required for when the criminal indictment is obtained and the defendant is charged. Prosecutor Robert McCullough used an obvious maneuver that only attempted to confuse the jury under the guise of being transparent. He presented everything including the kitchen sink and then told the grand jury to go figure out what happened. That is not the purpose of the grand jury process and how most prosecutors work.
In the beginning of the investigation, bias was suspected on the part of St. Louis prosecutor McCullough. His father was a police officer who was killed in the line of duty; McCullough wanted to become a police officer but had to change career plans when cancer required the amputation of his leg. State prosecutors work daily with the police. They develop relationships and sometimes friendships with law enforcement officers. Their cases rely on the testimony of police officers. It is understandable that there may exist bias on the part of prosecutors when dealing with police wrongdoings. And that’s the very reason that McCullough should have requested that a special prosecutor who does not have even the slightest appearance of impropriety to take over the case. Many civil rights groups called for a special prosecutor. But McCullough was always insistent on keeping the case. A special prosecutor might have bypassed the grand jury process and opted to bring charges directly by what’s called a criminal information charging Darren Wilson. McCullough had that option too. Of course, he never probably gave one single thought to using it.
In most cases, it would be extremely rare for the suspect to testify before a grand jury. In fact, most defense attorneys would not ever allow their client to testify in a grand jury proceeding. And one would only probably testify if they knew there was nothing to lose. With McCullough leading the charge supervising the two attorneys presenting the evidence, Darren Wilson has nothing to lose and everything to gain by testifying before the grand jury.
Now that the grand jury testimony has been released, there was more than ample witnesses and evidence to present to the grand jury that would have resulted in an indictment, if the St. Louis prosecutor wanted to obtain one. The 4,000 page volume has been condensed and summarized by NPR which supports that an indictment was possible if the prosecutors were not partly acting to exonerate officer Darren Wilson. The majority of witnesses testified that Michael Brown was shot facing Wilson with his hands up.
It sickens and dismays me as a former prosecutor that justice wasn’t served in the case of Michael Brown.