Blog No. 53. The Flames of Ferguson and the Grilling of the DA

The scenes of burning buildings in Ferguson, immediately following a Grand Jury’s decision not to indict Officer Darren Wilson, were appalling and depressing. They were all the more so because they were not all that surprising. Could they have been avoided or contained? Perhaps. The threat of violence had been widely anticipated, and despite advance pleas for calm from community leaders, clergy and the Brown family, the anticipation may have become something of a self-fulfilling prophecy. There were numerous factors contributing to the violent upheaval, but one of them may have been a basic misunderstanding of the criminal justice process.

In the weeks and months leading up to the Grand Jury’s decision, the choice of District Attorney Robert McCulloch to make a lengthy presentation of the case to the Grand Jury was sharply criticized. That procedure was viewed by many as unusual and unnecessary. Following the decision by the Grand Jury, criticism of the process, and attacks on District Attorney, have continued unabated. We believe that the criticism and the attacks are largely misplaced.

Typical of the recent criticism is a column by Eugene Robinson in The Washington Post:

The way McCulloch conducted the grand jury probe was anything but ordinary. Evidence is usually presented in the light most favorable to the prosecution; the idea is to seek an indictment and then figure out guilt or innocence later at trial. McCulloch presented both sides of the case in great detail, essentially asking grand jurors — not trial jurors — to be adjudicators of the facts.

A similar perspective was expressed by Jeffrey Toobin, in a New Yorker essay entitled “How Not To Use A Grand Jury.” After quoting, with apparent approval, the familiar cliche that a prosecutor could persuade a Grand Jury to “indict a ham sandwich,” Toobin opined that:

[A]ggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment. The standard for such charges—probable cause, or more probable than not—is generally a very easy hurdle. If McCulloch’s lawyers had simply pared down the evidence to that which incriminated Wilson, they would have easily obtained an indictment.

Robinson and Toobin are probably correct that McCulloch could have shaped the presentation of the evidence to the Grand Jury in a fashion that would have resulted in an indictment and could have done so in a period of weeks rather than months. Alternatively, he could have dispensed with a Grand Jury and obtained an indictment from a Preliminary Hearing. But should the obtaining of an indictment have been his intent?

The Grand Jury standard of probable cause is a low bar, easily satisfied. But responsible and ethical prosecutors will require more to proceed. As explained by a former prosecutor, Stanley L. Friedman:

It’s really the job of the prosecutor to only bring charges if he believes he can prove it beyond a reasonable doubt in court. It would be unfair to a defendant if there’s enough evidence for probable cause but not for a conviction. That’s very much part of the calculus — can he make this case in court? But if he deems that he can’t make the case, it’s more just and more fair to make the decision now rather than delay and face a not guilty verdict in court.

Put another way, while a Grand Jury may be led to “indict a ham sandwich,” responsible prosecutors will not seek an indictment unless they are reasonably confident of showing proof beyond a reasonable doubt that will convict the “sandwich” after a full trial.

In the Ferguson case, it is highly doubtful that the higher standard could have been met. As in the case of George Zimmerman and Trayvon Martin, we will never know exactly what happened at the critical moment. Nevertheless, the quantum of evidence (physical and testimonial) supporting the account of Officer Wilson would have presented a very high bar to a finding of guilt beyond a reasonable doubt by a conscientious jury. Even Toobin candidly acknowledged as much: “Based on a preliminary review of the evidence before the grand jury, it’s not clear to me that a trial jury would have found Wilson guilty beyond a reasonable doubt.“ Curiously, however, Toobin seemed oblivious to the significance of his own assessment. Such unawareness might be pardonable on the part of journalist such as Eugene Robinson, but is surprising in the case of Toobin, a lawyer and former prosecutor.

Toobin argued that McCulloch gave the Wilson case “special treatment” and that Wilson had not “been treated like every other suspect in McCulloch’s jurisdiction.” That much is accurate: the elaborate presentation to the Grand Jury was unusual. But to understand why McCulloch proceeded as he did it is necessary to ask how he would have proceeded had Brown been white. (Some will argue that had Brown been white, he would not have been fatally shot in the first place. That is theoretically possible but unknowable, and it is irrelevant to an assessment of the process that ensued.) We suggest that Toobin was wrong to imply that had Brown been white, Officer Wilson would have been promptly charged by a Grand Jury or at a Preliminary Hearing. On the contrary, we believe it is far more likely that, if all facts other than Brown’s race were identical, the case would have been investigated and then simply dropped without benefit of either a Grand Jury or Preliminary Hearing.

Absent the racial difference between Wilson and Brown, it is doubtful that closing the case without an indictment would have given rise to any protests and it certainly would not have drawn the attention of national media. As the actual events unfolded, however, the racial difference between the participants precluded such a course. Given the reaction of the black community, it was imperative that McCulloch do something and under the circumstances, the best available alternative was to put all the evidence before the Grand Jury. It was clearly preferable to engineering an indictment that McCulloch had good reason to believe could not lead to a conviction. In short, the comprehensive presentation of evidence to the Grand Jury was special treatment, but it was largely an attempt to respect and respond to the grief and outrage of the black community.

Critics of the District Attorney repeatedly stressed their desire to see the case tried in the open before a jury, but the disclosure of the evidence presented to the Grand Jury may have made more information accessible in a coherent form than a jury trial would have yielded. Moreover,it is likely that few critics of “the process” would have been satisfied by anything less than a conviction. Thus, an indictment followed by a trial and acquittal might well have merely postponed the agonies triggered by the Grand Jury’s decision.

None of the foregoing is to suggest that McCulloch’s handling of the case is beyond criticism. For example, it is fair to say that Wilson could have been cross-examined more vigorously before the Grand Jury. It is unlikely that doing so would have shaken his testimony or given the Grand Jury a different view of the facts, but it would have enhanced the credibility of the proceeding. Further, McCulloch did not help a touchy situation by his peculiar decision to make the announcement of the Grand Jury’s decision at nighttime when crowd control is more difficult and when protesters had already assembled. Nor was it a good idea to begin his statement with a lengthy complaint about media coverage and social media. It was a complaint that had some merit but was inappropriate to the moment. On the whole, however, we believe that McCulloch acted in a responsible and professional manner.

We also believe that a Special Prosecutor, confronted by the same circumstances, would have followed a similar course unless he or she found the pressure to seek an indictment irresistible and elected to bring charges despite the unlikelihood of obtaining a conviction. In either case, the ending of the story would have been equally disappointing to many in the black community

There remains, of course, the ongoing federal investigation as to whether or not Officer Wilson violated Michael Brown’s civil rights. Given the evidence presented to the Grand Jury, it is difficult to imagine how such a charge could be successfully maintained. One hopes that those in charge of the investigation, and the Attorney General, will feel no temptation to distort the criminal justice system in response to political pressures.

There can be little question that the black community in Ferguson, and black communities across the country, have legitimate issues with the criminal justice system and in a range of other areas. In Blog No. 45, “Ferguson: Is It the Tip of the Iceberg” we identified a number of the underlying problems that beset Ferguson and similar communities. But attempting to prosecute Darren Wilson is not an appropriate vehicle for addressing those problems. A more constructive step was taken by Governor Nixon who has appointed a Commission with a broad ranging mandate to investigate and make specific recommendations:

Under the Governor’s executive order, the Ferguson Commission will be responsible for issuing a report with policy recommendations in the following areas: citizen-law enforcement interaction and relations; racial and ethnic relations; municipal government organization and the municipal court system; and disparities in areas including education, economic opportunity, housing, transportation, health care, child care, business ownership, and family and community stability.

The Commission will have a difficult task but the experience and diversity of its membership gives some reason to hope that it will find a way forward. Among the panel — nine African Americans and six whites — are a police detective, a couple of protesters, pastors, educators and lawyers. The sixteen members were chosen from hundreds who submitted their names for consideration.

Eventually the flames of Ferguson will die down and one may hope that somehow a better and more unified community will find a way to rise phoenix-like from its ashes. But it will not be easy.