Some believe St. Louis County Prosecuting Attorney Bob McCulloch’s investigation of the Michael Brown killing was a fair, thorough and proper use of the grand jury to investigate the facts and sound out the community in a highly sensitive case. McCulloch’s press conference and his decision to release transcripts of the grand jury proceedings were sensitive and transparent.
Others say McCulloch’s unusual decision to give the grand jury all of the evidence, to not make a prosecutorial recommendation and to allow Officer Darren Wilson to testify show that McCulloch was looking for a way to insulate himself from criticism while getting the “no true bill” he wanted. Critics also say nighttime press conference was insensitive, unpersuasive and ill-timed.
Job well done: Stephen B. Higgins -- a former newspaper reporter, U.S. attorney and partner at Thompson Coburn -- oversaw police brutality prosecutions when he was the federal prosecutor in the early 1990s. To Higgins, McCulloch did a better job than almost any prosecutor in the country could have done, and his press conference explanation as exemplary.
“I’m dumbfounded by the criticism that he didn’t just charge Wilson and take the case to court. That is not the way to investigate a hugely sensitive and complex case. How can he be criticized for including culpatory and exculpatory evidence? How could anyone fairly complain that the process was too slow or too involved at the same time that he was supposed to be too biased?
“It’s you’re damned if you do and damned if you don’t. It was an incredibly balanced process.”
Higgins said McCulloch was “using the grand jury as a hybrid fact-finding investigative body, which is what it should be used for and also as a sounding board for what the community thinks.”
The former federal prosecutor, who said he didn’t know McCulloch well, said "I thought he did a phenomenal job in a really tough case of explaining the process and explaining why it is not as it appeared” in the social media and media accounts that followed the shooting.
Job done differently: But David Harris, a national expert on police cases at Pitt law school sees McCulloch’s handling of the investigation entirely differently.
“The thing that is most striking to me is the way in which the grand jury was used. In the normal case, the prosecutor determines how the grand jury is used and controls the evidence. They don’t have to put any defense evidence before the grand jury and they usually don’t allow the defendant to testify. And the prosecutor makes a recommendation for indictments.”
None of that happened in the investigation. “All of this adds together to a process that is much different from the usual. Any time that you treat something very differently … that is going to lead to the continuing view that this was handled unfairly.
“It is so unusual for the prosecutor to dump all of the evidence and not guide them at all to not give them help and direction. Here we have the outcome he may have wanted but did not want to take the heat for. There is nothing illegal about that, but it basically never happens and the lack of the usual tells you a lot.”
Thomas Harvey, a St. Louis defense lawyer active in municipal court reform agrees: “If you are going to present this version of a grand jury as anything other than an aberration, I think it's necessary to ask why this isn't the standard in every case. To the person at home, this version is more fair: present all evidence, give a laundry list of charges, and let the grand jury decide. The problem is this almost never happens. As a criminal defense lawyer, I want this for all my clients.”
The diametrically opposing views of credible lawyers, illustrates something more general about the Ferguson case – that even 25 days of grand jury sessions, 70 hours of testimony, 60 witnesses, multiple investigative reports, hundreds of photos, duplicate autopsies and multiple forensic tests have not moved the nation toward consensus.
Marcia McCormick, a law professor at Saint Louis University put it this way: “I think the biggest lesson from the grand jury transcripts is that we all read different things into them. … I don't feel like we know much more now than we did before the testimony was made public, in large part because we are all still interpreting the facts and ascribing motives and reactions, as did the witnesses.”
Here are some of the legal issues that are getting the most attention in the wake of the grand jury’s decision:
Was McCulloch’s decision to take the case to a grand jury unusual in a police shooting case?
Yes and no.
“I don’t know that there is a usual process,” says Higgins. “…if there is a lot of conflict in testimony or a racially charged situation, prosecutors will use grand juries not necessarily to insulate themselves but because they want a focus group view of the evidence. Grand juries are typically used in the tougher cases and they are investigatory bodies. It is an expensive tool to use but a good one. He would have been nuts not to use a grand jury.”
Harris agrees that “you occasionally see this kind of thing when a prosecutor does not want to take a strong position in a case.”
Benjamin Crump, the lawyer for the Brown family, claimed McCulloch was acting “different from anything he’s done in his past 28 years with grand juries.” That is incorrect. McCulloch himself used the grand jury process to investigate the police killings of two men at the Jack-in-the-Box restaurant in Berkeley in 2000. Federal authorities also used a grand jury. No state or federal charges were filed.
Was the Ferguson grand jury different from most grand jury investigations?
The prosecutor usually does not present evidence favorable to the defense and usually the prospective defendant doesn’t testify. Often a suspect has already been charged and is in jail when the case goes to a grand jury. “The rule on grand juries is that the prosecutor has full discretion,” says Harris. “He can put no exculpatory evidence.”
But when grand juries investigate police shooting cases, prosecutors will more often present a broader range of evidence; and the officers will remain free during the investigation. Also, lawyers say, getting a potential defendant to testify before trial is the prosecutor’s dream, which is why most defense lawyers advise grand jury targets not to testify.
Is probable cause a standard of proof that demands a lot?
There is no precise definition. It is much less than the “beyond a reasonable doubt” standard of a criminal trial. It also is less than the “preponderance of the evidence” standard of a civil case. Preponderance of the evidence is more than half.
Richard Kuhns, emeritus professor at Washington University law school, says a police officer’s probable cause standard is “less than more-likely-than-not.” Harris says it’s “more than reasonable suspicion. It is a judgment based on all of the circumstances and you don’t have to have as much evidence as 50 percent.”
Did prosecutors in the Wilson case give grand jurors a clear explanation of probable cause?
It’s unclear. Kuhns points out that the discussion of probable cause by the prosecutors was somewhat vague. “The prosecutors seemed quite glib about probable cause when they were talking about the instruction -- assuming that the grand jurors knew what it meant from their previous cases where, of course, probable cause was probably never an issue, at least in the same way that is was here.”
The other criminal cases heard by the same grand jury would have had recommendations from McCulloch for prosecution.
Did Wilson get favored treatment in the investigation and at the grand jury
McCulloch and former prosecutors such as Higgins say he did not.
But Paul D’Agrosa, a criminal defense attorney disagrees. “What was unusual is that he had a lawyer present at the police station” within hours of the shooting. “That was shocking to me,” he said. “To me that means there was great deference to the police officer … I think he enjoyed the benefit of the doubt from the first day.”
D’Agrosa noted that a number of lab tests shown to the jury labeled the case as an assault on a police officer or listed Wilson as the victim. “If you are a grand juror and you’re reading this. … this is going to color your view of the evidence overall,” he said.
Other lawyers questioned whether prosecutors in the grand jury room questioned Wilson more gently than they questioned witnesses favorable to Brown, such as Dorian Johnson. Kuhns thinks all police witnesses got treated well. “My sense so far in my slow trek through the transcript is that the prosecutors were especially solicitous of police officers.”
But a former federal prosecutor said it’s smart strategy to allow a target of a grand jury to talk extensively, in the rare instances the target testifies, because it is more likely he will provide evidence that hurts his case.
What defenses were the grand jurors told about?
As the grand jurors were about to begin their deliberations, the prosecutors told them they not only had to find probable cause to believe Wilson had committed a crime but also that he was not entitled to either of two defenses – that Wilson acted in self-defense and that he acted to affect an arrest.
“Both are complete defenses to any offense and they both have been raised,” the prosecutors said.
Was it unusual that the prosecutors gave the grand jury instructions on assault?
Yes, some lawyers say.
In addition to giving the grand jurors the law on the crimes that Wilson might have committed – first and second degree murder, voluntary and involuntary manslaughter and armed criminal action – the prosecutors also gave them the law on assault. The reason was that it related to Wilson’s self-defense claim.
Chad Flanders, a law professor at Saint Louis University, said, “It's interesting that they gave them the assault statutes, too, to show that this was the violent felony that Wilson was responding to -- and trying to arrest Brown for.”
Harris, the Pitt professor, said, “It is unusual. Giving the instruction on assault is another way of indicating that perhaps Michael Brown brought this upon himself.”
Is self-defense the same for a police officer and a civilian?
Flanders put it this way: “If it's straight self-defense, and you're an ordinary citizen, then Missouri case law says you have to try to do everything within your power to avoid using deadly force (there were some questions to Wilson to this effect, e.g., Why didn't you just stay in the car? Why did you chase after him?). But if you're a law enforcement officer, you ‘need not retreat or desist from efforts’ to arrest someone or to prevent his escape. So this is why the assault statutes are relevant--they show he had probable cause to arrest for assault.”
Is the grand jury a prosecutorial tool or designed to protect the defendant?
In practice, prosecutors effectively use grand juries to indict suspected criminals. But historically, the grand jury was designed to protect citizens from the Crown. It is included in the Fifth Amendment as a protection for citizens.
A 2013 treatise on Missouri Practice and Procedure on grand juries explains it this way:
“…it can function as a shield for protecting individuals from unwarranted prosecutions. Generally, however, grand juries functioning in this capacity act simply to review the charging decision of the prosecutor who, in most instances, will screen out those cases in which probable cause is lacking. Cases in which the grand jury does not return a true bill may reflect that the prosecutor is really seeking confirmation of a decision not to prosecute, such as where a case has become highly publicized.”
Is there any other possible way to prosecute Wilson for a crime?
Yes, but it’s hard.
The Justice Department has been investigated the case alongside the state authorities. A Justice Department prosecution would be for depriving Brown of a civil right. Prosecutors have a high bar of proof. They would have to show that Wilson had the “specific intent” to deprive Brown of a known civil right. That means they would have to show Wilson acted willfully, that is with reckless disregard for the established right.
“The chances of that are not impossible but are low,” said Harris. “The public doesn’t like to convict police officers. The police officers make very good witnesses. The accusers generally are not good witnesses. The federal government is reluctant to bring any but the strongest cases. The Justice Department investigates about 10,000 allegations against police each year, and files about 30-40 prosecutions, winning about half.
Are there other, non-criminal actions that can be taken?
Ferguson police could discipline Wilson or fire him. Brown’s family could file a civil rights suit for money damages. And the Justice Department has a civil, pattern or practice investigation underway that could force the Ferguson police department to change unconstitutional practices.
The Missouri Department of Public Safety also could take away Wilson’s license as a peace officer. But Roger Goldman, an expert on police licensing at Saint Louis University law school, says the state probably would not take action against Wilson when there was no indictment.
Do the grand jury materials released by McCulloch contain evidence important to legal issues involved in the case?
The physical evidence – Brown’s blood and DNA in the car – back up Wilson’s account that Brown reached into the car and fought with him. A photo of Wilson’s face also shows he was hit.
But legal experts said the physical evidence and witness testimony is sketchier in relation to the other key moment when Brown stopped fleeing and turned around. McCulloch pointed out that Brown’s body was about 25 feet closer to Wilson and his cruiser than the farthest drops of blood – indicating that Brown was moving back toward Wilson when he was fatally shot. That supports Wilson’s account as does some of the witness testimony.
But other witnesses testified the Brown was not moving toward Wilson or that he may have had his hands up.
Steve Ryals, a civil rights lawyer who handles police abuse cases, thinks the evidence would support a criminal charge. “Brown was killed either as he was falling (and no longer a threat, much less a deadly force threat) or was head-down-charging at Wilson, after having been shot. … It is difficult for me to understand how the use of deadly force against an unarmed and wounded individual by an officer who was specifically trained in non-lethal tactics, does not present probable cause to support a homicide charge.”
Rachel D. Lippmann contributed information to this story.