On Monday, November 24, 2014, Ferguson Prosecuting Attorney Robert McCulloch announced to the world in a press conference that the grand jury had declined to indict white police officer Darren Wilson in the death of Michael Brown, the unarmed, black 18-year-old whose fatal shooting sparked weeks of protests and inflamed deep racial tensions between many African-Americans and police. I don’t believe that anyone was surprised that officer Wilson was not charged in the killing of Michael.
It appears that Prosecuting Attorney McCulloch led the grand jury in a manner that I believe was designed to indict Michael rather than the man who shot him. Even at the start, many doubted whether the grand jury process would be fair since McCulloch had strong ties to the Ferguson Police Department and there had never been an indictment of any Ferguson police officer. In addition, McCulloch’s father was a St. Louis police officer killed in the line of duty by a black man when McCulloch was 12; his brother, nephew and cousin all served with the St. Louis police; and his mother worked as a clerk for the force for 20 years. Given these possible biases, there were many calls for McCulloch to recuse himself from the grand jury proceedings, but he refused. Even Governor Jay Nixon refused to relieve McCulloch as the prosecuting attorney and appoint a special counsel as many folks requested.
The way McCulloch conducted the grand jury investigation was anything but ordinary. Evidence is usually presented in a manner most favorable to the prosecution; the main purpose is to seek an indictment and then determine guilt or innocence at trial. McCulloch presented both sides of the case in great detail basically asking grand jurors to function as adjudicators of the facts. During his news conference, McCulloch was very clear that he believed the eye witnesses who supported Wilson’s version of events were more credible than those who did not. In fact, the only witness worthy of him quoting was Witness Number 10.
On August 11, 2014, when detectives interviewed Witness Number 10, a detective asked, “Would you just retell your account of what took place?” We all know that retell means that this witness had already told his story at least on one previous occasion without being recorded, so there is no way of knowing just how consistent his police statement was with his testimony before the grand jury. Here is what witness 10 said on August 11th: “I seen the two young guys walking down the street on the same sidewalk that I was on…”. Six weeks later during his testimony before the grand jury while under oath, Witness Number 10 changed his story. He then said, “I seen Mike Brown and his friend walking down the street close to the curb, not on the sidewalk.”
McCulloch also stated during his press conference that witnesses were changing their story before the grand jury on Wilson getting out of the car to chase Brown. Here is what Witness 10 said, “[Michael Brown] stopped. He did turn, he did some sort of body gesture. I’m not sure what it was, but I know it was a body gesture, and I could say for sure he never put his hands up after he did his body gesture, he ran towards the officer full charge.” When asked by the assistant prosecuting attorney in the grand jury room what he meant by body gestures, Witness Number 10 said, “I can’t say for sure what sort of body gesture, I cannot fully recall. All I know it was not in a surrendering motion of I’m surrendering, putting my hands up or anything, I’m not sure if it was like a shoulder shrug or him pulling his pants up, I’m not sure.” McCulloch’s favorite witness is saying, “I can’t recall,” “I’m not sure?” The only thing he is sure of is that Michael Brown did not so a surrendering motion. Yet many witnesses who came forward were consistent in saying that Michael Brown had his arms raised in a surrendering position.
The assistant prosecuting attorney then asked: “Let me ask you how is your vision?” Witness 10, “pretty good.” Question: “Okay, do you wear glasses or contacts.” Witness 10, “no.” The assistant prosecuting attorney did not ask when was his last eye examination or had he ever had his eyes examined. We do not know how old this witness is, but we do know that his eyes must be perfect to offer the grand jury the precise observations that he did. During his police interview on August 11, 2014, two days after the killing of Michael Brown, Witness 10 was asked how far away he was from the confrontation between Michael and Wilson, and he said, “…To guess maybe 100 yards, I would say. Maybe less.” However, on September 23, 2014, six weeks later, when asked under oath in the grand jury room, how far away he was, he said, “I would give it 50 to 75 yards.” Witness 10 reduced the distance in half while under oath before the grand jury, but the grand jury was not told by the assistant prosecutors what he said previously. Witness 10 changed his testimony while under oath.None of us know anything about witness 10 because he never came forward publicly, but he turns out to be the only witness to fully support Wilson’s version of what happened. I believe that the prosecutors willfully did nothing to help the grand jury judge the reliability of witness 10.
Prior to Wilson’s testimony to the grand jury, Ms. Kathi Alizadeh, one of the assistant prosecutors presenting the case, said this to the grand jury on September 16, 2014: “I’m going to pass out to you all, you all are going to receive a copy of a statute. It is Section 563.046, and it says law enforcement officers use of force in making an arrest, and it is the law on what is permissible, what force is permissible and when in making an arrest by a police officer.” Ms. Alizadeth then handed the jury a copy of a 1979 Missouri law that was ruled unconstitutional by the U.S. Supreme Court in 1985. Ms. Alizadeth handed the grand jury a copy of an unconstitutional law that said incorrectly that it is legal to shoot fleeing suspects simply because they are fleeing. By handling the grand jury that outdated law, Ms. Alizadeth deliberately lowered the legal standard upon which Wilson could be judged. With that law, she was telling the grand jury that Wilson had the legal right to shoot and kill Michael Brown as soon as Michael started to run. She was also informing the grand jury that Wilson did not have to believe that his life was being threatened by Michael.
That portion of the Missouri law, Chapter 563.046 says,“….Justified in the use of such physical force as he or she reasonable believes is immediately necessary to effect the arrest or to prevent the escape from custody.” As stated previously, that portion of the law was ruled unconstitutional by the US Supreme Court in 1985. The grand jury then listened to Wilson’s testimony based on the belief that his shooting of Michael was fully justified because of that law since Michael ran away from Wilson.
What is equally astonishing about how this case was presented is that several weeks after Wilson testified and as the grand jury was about to consider whether or not to indict Wilson, Ms. Alizadeth told the grand jury on November 21, 2014 the following: “Previously in the beginning of this process I printed out a statute for you that was the statute in Missouri for the use of force to effect an arrest. So if you all want to get those out, that we have discovered, and we have been going along with this during research, is that the statute in the state of Missouri does not comply with the case law. This doesn’t sound probably unfamiliar to you that the law is codified in a written form in books and they’re called statutes, but courts interpret those statutes, and so the statute for the use of force to effect an arrest in the state of Missouri does not comply with Missouri Supreme, I’m sorry, United State Supreme Court cases. So the statute I gave you, if you want to fold that in half just so that you know don’t necessarily rely on that because that is a portion of that that doesn’t comply with the law.” How can the grand jury understand such legal jargon when they are not attorneys?
Ms. Alizadeth then gave the grand jury the revised law dealing with police use of force and then she said, “That does correctly state what the law is on when an officer can use deadly force in effecting an arrest, okay. I don’t want you to get confused and don’t rely on that copy or than print-out of the statute that I’ve given you a long time ago. It is not entirely incorrect or inaccurate, but there is something initially that’s not correct, ignore it totally.” The grand jury then asked, “The Supreme Court, Federal court overrides Missouri statutes?” Instead of a simple yes, Ms. Alizadeth said, “Just don’t worry about that. As far as you need to know, just don’t worry about that.” Ms. Whirley, the other assistant prosecutor added, “We don’t want to get into a law class.” Neither assistant prosecutors explained what was incorrect about the Missouri law nor did any of them inform the grand jury what the correction was.
I believe that this case was fraught with a blatant attempt by McCulloch to obtain a decision not to indict by the grand jury for several reasons: (1) the grand jury consisted of twelve (12) people, 9 white and 3 black jurors; only 9 votes were required for decision; (2) McCulloch did not present the case to the grand jury as most prosecutors do; two of his female assistants had the honor, which is generally inconsistent with how prosecutors use the grand jury process; (3) it is unheard of for a possible defendant to testify before a grand jury. Wilson testified for over 4 hours giving his side of what happened; (4) the only witness that passed McCulloch’s “credibility” test was witness 10, the only witness to support Wilson’s testimony. Remember, this witness saw everything clearly at originally 100 yards but changed that to 50 years during his testimony, but the grand jury was never informed about the his previous statement; and (5) McCulloch’s staff initially presented the grand jury with an old Missouri law on an officer’s use of force on September 16, 2014, that was ruled unconstitutional by the US Supreme Court in 1985, but they deliberately withheld the correct law from the grand jury until November 21, 2014, when it was about to render a decision.
Except what the family may do in a civil court, what happens now will depend on the outcome of the U.S. Department of Justice investigation on whether Wilson violated Michael Brown’s civil rights as well as the overall conduct of the entire Ferguson Police Department in its policing efforts against the Ferguson African American community. If McCulloch wanted an indictment, he could have obtained it as most prosecutors do when convening a grand jury. It was never McCulloch’s intention to seek an indictment nor did he want to blemish his perfect record for never indicting any Ferguson police officer, but that’s just my take.