The day after Officer Darren Wilson shot Michael Brown, more than a dozen businesses were vandalized and looted, over thirty people were arrested and two officers suffered injuries. In the months following, the nation was deluged with media coverage of:
• Looting and violence bringing more arrests, tear gas, armored vehicles, officer injuries, death threats against the police, a state of emergency and the National Guard after protesters threw Molotov cocktails and shot at police and tried to block roads and overrun the police command center
• The President urging calm and announcing a nation-wide review of police tactics
• The local investigation into the shooting
• Vigils, marches and protests around the nation
• The U.S. Attorney General ordering a separate federal autopsy of Michael Brown and a federal civil rights investigation - citing the “extraordinary’’ nature of the case
Headlining criticism of Prosecuting Attorney McCulloch’s decision to present all the available evidence and let the grand jury decide whether it was sufficient to support a charge of any degree of homicide began immediately and continues today. There’s been little coverage of reasons supporting McCulloch’s decision to proceed as he did.
“Ordinary” Cases
In the federal system, grand juries must be used to bring felony charges and in 2010 there were 162,000 such cases. We don’t have comprehensive data on state grand juries. Safe to say, there are hundreds of thousands of state grand jury proceedings annually.
Generally, the purpose of the grand jury is to determine whether “there is adequate basis for bringing a criminal charge” (U.S. Court of Appeals, Washington, D.C., 1998, In re Dow Jones & Co., Inc.). It’s a low threshold, akin to probable cause.
If met, the case may proceed to pretrial challenges by the defense and a trial where the evidence can be cross-examined and rebutted by the defense and held to the highest standard of proof beyond a reasonable doubt.
Because of its limited purpose and the sheer volume of cases, “ordinarily” prosecutors present just an adequate basis to support the charges they think are appropriate. If their judgment is sound, the grand jury should agree. It most often does.
An “Extraordinary” Case
I was a prosecutor in Alaska’s Office of Special Prosecutions and Appeals. One of our functions was to guide investigations of complex or sensitive cases. When appropriate, we would proceed with the prosecution of such cases.
One morning I was awakened by a phone call from my boss telling me to meet the Alaska State Trooper death investigation team at the Anchorage Airport to accompany them to one of the Aleutian Islands.
This was unusual. “Ordinarily” local police or the Alaska State Troopers would investigate a crime and then forward it to the appropriate local prosecutor’s or state DA’s Office.
My boss explained: The white chief of police of the all-white department had shot and killed a knife-wielding Alaska Native in his home. The local population was predominantly native. There was a significant community problem of alcohol abuse, which the local government had asked police to crack down on. Tensions between police and the native citizenry were already high when the shooting took place.
There was serious concern about backlash and alcohol-fueled violence. Enough that a local decision was made to temporarily shut down the tribal-run liquor store. My boss wanted me to accompany the troopers to make sure every legal “t” was crossed and “i” dotted in anticipation of extraordinary scrutiny and the high stakes the investigation held for the community.
After reviewing the evidence, I concluded the shooting was legally justified. I conferred with a more-experienced prosecutor who supervised the Anchorage DA’s Office pre-indictment unit. He concurred and advised that a nearly identical officer-involved shooting in Anchorage resulted in a 20 minute presentment and a quick decision by the grand jury that the officer was justified using deadly force. I could’ve gone that route.
Instead, under Alaska statute, I petitioned for a judge to fly back to the island with me and conduct a death inquest during which I would present evidence to local citizens the judge had determined could fairly decide whether the shooting was justified.
The Judge and I spent nearly a week seating the inquest jury, presenting all the evidence — including expert testimony to answer such juror questions as, “Why didn’t the chief shoot the knife out of his hand or shoot him in the leg?” — and waiting during two days of jury deliberation.
After deciding the shooting was justified, two of the jurors broke down, confiding they’d received threats and untold pressure.
Why did I take such extraordinary steps? My boss, the troopers with their wealth of rural Alaska law enforcement experience, and many St. Paul residents believed it was extremely important for the case to be decided locally. If an urban Anchorage grand jury found the shooting justified in a matter of minutes, what confidence would the local community have in that decision?
I could’ve easily gotten a decision from the local inquest jury that the shooting was an unjustifiable homicide. A decision I was confident would never be sustained at a jury trial against defense attacks, rebuttal and the highest standard of proof. A trial that likely wouldn’t even be local after the defendant moved for a change of venue. And where would the victim’s family, the chief and the people of that island be then?
Back to Ferguson
It would’ve been unethical for Ferguson prosecutor to handle case in “ordinary” fashion.
Mr. McCulloch has been criticized not just for presenting too much evidence but also for not leading the grand jury to specific criminal charges as is ordinarily done. Instead he instructed them on numerous charges that might possibly apply and justifiable use of force, and left it to them to decide.
The American Bar Association’s Prosecution Standard 3-3.9 provides:
“A prosecutor should not bring criminal charges or let them continue unless there is sufficient admissible evidence to support a conviction.”
If McCulloch thought there wasn’t sufficient admissible evidence to support a conviction at trial, it would’ve been unethical for him to bring charges in the ordinary fashion of most grand juries. Clearly the grand jury thought there wasn’t even probable cause after hearing much more evidence than is ordinarily presented.
McCulloch has been damned for what he did. And he’d be damned if he’d presented the case following grand jury norms and gotten an indictment. He’d be damned by the profession’s prosecution standards and he’d be damned when a trial jury found the government failed to prove a case to a much higher standard of proof against a skilled defense lawyer’s challenges — an event likely to incite more violence, property damage and injuries to citizens and officers.
The critics don’t talk about McCulloch’s obligation to not bring charges that cannot be sustained at trial while still letting grand jurors representing his community examine the evidence and see if they agree.
