In spite of the above biased opinion, what happened with the Ferguson grand jury was an unusual latitude allowed for them to evaluate as much evidence and testimony as possible, then come to a conclusion without the biased directive of a prosecutor based on selected evidence.
But that didn't happen. The prosecutor was all kinds of biased in his presentation. Presenting evidence to the grand jury for the defense is showing clear deference to the defendant. Wilson was questioned on the stand by the prosecution as if the prosecution was his defense attorneys, failing to treat him adversarial, accepting everything he said at face value, not questioning on anything he said including his own inconsistencies within the testimony and between testimony and deposition. The prosecution was overtly hostile to witnesses who gave damaging testimony against Wilson.
And then there's the little matter of letting people testify whom he knew were lying, like Sandra McElroy, for example, who testified that Michael Brown charged at Wilson “like a football player, head down,” supporting Wilson’s claim that he killed Brown in self-defense. She testified for several hours over 2 days. She was treated with kid gloves also, and was made to be extremely believable.
The problem is, she wasn't even there. Didn't..see..a..thing.
And McCulloch knew it.
McCulloch justified doing so by saying the grand jury gave no credence to her testimony. But he made that up. He doesn't know. Prosecutors aren't allowed to be in there with the jurors while they're deliberating, nor are they allowed to discuss the deliberations with the jurors.
That's probably why McCulloch is under investigation by the Missouri General Assembly and the Missouri State Bar's Disciplinary Committee.
The New York Times - not exactly a bastion of conservatism or law-and-order fanatics - has done some excellent work on the Ferguson events which includes the following:
The paragraph following the one above is an interesting graphic showing the differences between the Ferguson grand jury and a typical grand jury. Since I couldn't get the format to reproduce, the reader will have to scroll about halfway down the article (which is in a Q&A format) to find it. However, the more one examines their process, the testimony and especially the physical evidence, the more apparent it becomes that they came to a reasonable conclusion.
Yes, it's quite different in how the grand juries are handled. Jarringly so. At the time it was going on lawyers all over the place were scratching their heads and questioning the wisdom and reasons for it, and even more of them think it was wrong now that it's over. McCulloch has never done before what he did with Wilson't case. Some people may believe the jurors reached a reasonable conclusion, but it was a conclusion they were destined to reach. McCulloch did what prosecutors have always done - present his case to the grand jury with his thumb firmly on the scale to get the decision he wanted. A grand jury is a the tool of the prosecution.
When you examine the evidence, especially the testimony, it's also important to examine what is not there. The testimony doesn't show, for example, why prosecutors did not cross-examine Wilson over some of the inconsistencies in the story he told to grand jurors. Wilson wasn't questioned about the hospital report which found that after the shooting that other than the slight redness on his right cheek (which is towards the inside of the car and unlikely to be struck by a right fist of someone standing outside the car, yet that's how Wilson testified) and a scratch on the back of his neck, that he was "well-appearing, well-nourished, in no apparent distress." Nor was he challenged about his inconsistent statements in how many times and in what manner he was punched by Brown, or in what were Brown's final moves just before the killing. NOT asking those questions is how to you handle your own witness as a defense attorney. But those are lines of questioning that you, as a prosecutor, are certainly going to want to take when questioning the accused target of a grand jury indictment proceeding.
Contrary to some of the statements of a few of the more agitated, the only thing the people of Ferguson wanted was equal and honest justice - some kind of proof that young black lives matter in a town (and arguably a country) with a history of it being the opposite. Instead, McCulloch determined that this case would be brought before the grand jury in a manner that NONE of the other hundreds of cases that he's prosecuted in St. Louis County have ever been handled. In other words, instead of equal and honest justice, Mike Brown's justice was was separate, dishonest and highly unequal. Every defense attorney in St. Louis with a client under investigation should demand that McCulloch treat their case the same way he treated the case of Darren Wilson. Do you think McCulloch would be okay with that? And if not, how can you say that there was justice of any kind in this case?
Everything that happened in that grand jury, and in Ferguson, was mostly staged. When the grand jury decision was announced, it was telegraphed long before the announcement. It was discussed right here on EO and a really lot of other places as to why on Earth would a prosecutor with any intelligence, with an angry crowd outside city hall announce several hours in advance the time of the announcement, so as to allow anyone not part of the crowd plenty of time to join in, and then schedule that time for 8PM local time when it's good and dark. Especially since he knew what the announcement was gonna be? Was anybody anywhere at all surprised at the reaction of the crowd? No of course not. That's because it was all crafted to be that way.
Robert McCulloch, the top law enforcement official in one of the nation's largest counties, had weeks to decide just exactly how he would release the eventual results of the grand jury probe. And of course he knew full well for all of those weeks what the likely decision of no indictment was gonna be, because he had engineered it right from the start. He could have released the news earlier in the day, when many folks were still in work or school, or he could have held the information overnight and released it the next morning. Instead, he picked the time when the largest number of protesters possible could gather, and react, under the cover of a deep dark sky.
The announcement and its timing was just one of a number of critical decisions by McCulloch that were either very inept, or crazy, or maybe neither at all after you consider what his real objectives might be. Start in the early days of the crisis, when McCulloch, from a family of police officers, whose father was murdered by a black man in the 1960s, who won office with the enthusiastic backing of the police union and and who has never, ever, not even once prosecuted a law-enforcement officer for excessive force or police misconduct, much less a police shooting, joined with Governor Nixon to resist any and all calls to remove himself from this case in favor of an impartial special prosecutor. He wanted this case, period. And he wanted it for reasons other than simply that's his job. Prosecutors are replaced all the time with special prosecutors for conflicts on interest and other reasons. It's no disgrace or anything like that.
Then next came a series of McCulloch moves, to dump mounds of evidence on the grand jury, much of it conflicting, to not seek a specific charge against Wilson, and to allow the "target" of the investigation to tell his side of the story, unchallenged by the prosecution, for four hours, that all pointed in one direction, to guide the legal process to its predetermined outcome of no indictment. There's no other way to interpret that, because there's no other reason to handle it that way.
The release of the supporting grand jury documents raises far more questions than they answer, like the ones above about what kids of questions were not asked, and which kids of questions were asked. McCulloch could have put most of the doubts to rest in his announcement with just a simple announcement, one that was respectful (to the people and the process), balanced and factual, but he chose to show what he was really all about instead. He was smug, arrogant, pretentious, and, in ginormous irony, and I do love a good irony, me managed to "indict" just about everyone
not named Darren Wilson. He lashed out at the media - "the 24/7 news cycle and an insatiable appetite for something -- for anything to talk about" - without once saying anything about the 19 journalists who were arrested until Amnesty International finally arrived to monitor the human-rights violations by the police. He lashed out at social media, because nothing ticks off a government official than Tweets they don't like. And his angry, passionate, biased words about Mike Brown left little doubt whom McCulloch really wanted to charge.
Afterwards, lawyers and legal analysts interviewed on TV were uniform in being rather unkind to McCulloh's actions and statements. It was something that deserved much air time discussion, but it got very little. Why not? Because Ferguson was in flames by the time McCulloch's dog and pony show was over, and TV cameras are drawn to fire faster than moths to the same flames.
But that's pretty much what McCulloch expected. How could he not? You can bet yer azz that he wanted the 24/7 media that he whined about and every newspaper front page in America to show riots, rather than linger on him and the
injustice system in St. Louis County. Without question, authorities in Ferguson and in the governor's office worked really hard over those few months leading up to the announcement to make the story today one of lawless disorder and protests, rather than a story of injustice. Remember the drumbeat of law-and-order stories, like Governor Nixon taking the rather extraordinary move of declaring
a state of emergency! OMG! a
full week before the announcement, which, of course, naturally stole the spotlight from how this whole story started in the first place - about social injustice, and policing in black communities? The hated white cops vs. the unruly/violent mostly black mob - that's the storyline that people like Nixon and McCulloch (and possibly a few here) feel most comfortable with, and so it's the story that they orchestrated for weeks. Hammered it over and over. They consistently deflected questions about the injustices in Ferguson to that of the throngs of protesters, and the damage done. And it worked, because that's all a lot of people want to talk about.
Even after reading only a few of the witness statements, it becomes apparent that these recounts of the Brown incident vary greatly and it's obvious that more than a few witnesses lied in their statements to the police and in their testimonies to the grand jury. Notice that none were prosecuted for perjury.
Prosecutions for perjury are pretty rare, anyway, as lying under oath isn't actually a crime in and of itself. Perjury isn't a crime unless the false statements made are material to the outcome of the proceeding. If the lie changes or greatly affects the outcome, then it's perjury, but if it doesn't, then you're merely not believable. No harm no foul. Granted, in the Ferguson grand jury testimony a lot of those lies were very likely material to the outcome. But there is no way McCulloh would prosecute anyone for perjury, because he's already publicly admitted that he knowingly put to them on the stand to lie.
