Travesty of Justice in Ferguson

Millions of Americans waited across the country on Monday evening, November 24 to learn the decision of the Grand Jury in Ferguson, Missouri. Twelve men and women had been meeting since August 20 to hear evidence in the case of the shooting death of Michael Brown, an unarmed black teenager, by Darren Wilson a white police officer on August 9.

On that day, instant pictures went viral across the nation and the world of the body of Michael Brown lying face down on the bloodied street for four hours in the August heat. Neighbors and onlookers called local news stations and posted images on Facebook and Twitter. Viewers reacted with shock and horror as hundreds of people gathered at the scene of the shooting. Over the next days, protestors came to Ferguson from other states with 24 hour coverage on cable TV. There were weeks of demonstrations that the police met initially with tear gas, rubber bullets and surplus military equipment supplied by the federal government to many cities. Governor Jay Nixon deployed the Missouri National Guard to maintain order.

Several autopsies were performed, one by Dr, Michael Baden, the former chief medical examiner of the City of New York. He found that Michael Brown was shot at least six times, twice in the head, with one entering the top of his skull causing a fatal injury. Eye witnesses at the scene gave reports to the police and the news media. Several said they saw a scuffle at the open door of the police car between Brown and Wilson and heard two shots. Other witnesses described Brown running away from the car, being shot and turning with his empty hands raised to face Wilson who continued to fire at him. One witness made an audio record of the shots which he gave to the police: two shots…. then a pause… six more shots.

A grand jury of twelve St. Louis County residents had been impaneled in May. They were asked to determine if there was “probable cause” to believe Officer Wilson had committed a crime. There were nine white members and three black members on the jury who began to meet secretly on August 20. As with all grand juries, their task was not to try a case; it was to decide if a true bill would be brought in for a specific crime. The jurors would hear evidence from witnesses and consider crimes that ranged from first-degree murder to involuntary manslaughter. The St. Louis County prosecutor, Robert P. Mc Culloch would be the key person to decide what evidence and witnesses would be presented to the jury. He was aided by two assistant prosecuting attorneys. Grand jurors were told that they could never reveal their deliberations to anyone — with a penalty of imprisonment if they did.

Ferguson, a suburb of St. Louis with 20,000 residents, changed over the last three decades from a predominantly white community into one that is about two-thirds black. The median household income , $37,000 is less than the statewide average. The mayor and five of the six City Council members are white. The town’s police force of 53 has only three black officers. After the all white seven member district school board ousted the black superintendent , three board positions were up for election. Several black candidates ran and only one was elected to a seat. There were ongoing grievances with the police routinely giving traffic tickets resulting in jail time. And skepticism that the tickets were a way to raise funds for the city.

When Robert Mc Culloch was appointed to head the grand jury, there were immediate protests from the Brown family lawyers and black community leaders. They urged Governor Nixon to appoint an independent prosecutor. Mc Culloch had a reputation of being closely connected to the police force and protecting officers. In his 23 years on the job, there had not been a single prosecution of a shooting by the police. When he did present evidence to a grand jury in four such cases, the result was no true bill for an indictment. In addition, they knew that his father, a police officer, had been killed by a black suspect. Although that did not disqualify him, they felt Mc Culloch could hold bias from that severe trauma in his personal life.

The calls for appointing an independent prosecutor were denied . Robert Mc Culloch moved forward, completely in charge of the grand jury investigation. From the outset, he made significant changes in the way such hearings have always been conducted nationwide. First, early in the hearings, he called the defendant, Officer Darren Wilson. This was an extremely rare event, since the prosecutor’s role has always been to lead and direct the grand jury with evidence and witnesses that support a particular indictment. Thus, early in September , Wilson was able to look at the jurors and give his very strong vivid account of what happened on August 9. He testified for four hours and there was no cross-examination since this was not a trial. Wilson answered “gentle questions” from the assistant prosecutor and his words are in the transcript of the hearings that McCulloch ordered released on November 24.

Wilson said he had stopped his car with the window down to tell Brown and a companion to clear the street. Brown approached, “looking like a demon” and calling him “pussy” and other epithets . Brown reached through the window and a struggle for Wilson’s gun ensued. Wilson said he was terrified and “felt like a 5 year old holding on to Hulk Hogan.” (Brown was six-six and 292 pounds; Wilson is six-four and 210 pounds.) Wilson yelled, “Get back or I’m going to shoot you.” A shot went off that hit Brown’s hand. Brown turned and ran. Wilson left the car. He testified that Brown reversed course and charged at him. Wilson then fired a round of shots. “I remember looking at my sites and firing. All I see is his head and that’s what I shot.” In the final weeks of November, Wilson, who had been on paid administrative leave, gave an interview in which he reasserted that he feared for his life and completely denied that Brown had his hands raised above his head when he was shot.

During successive meetings of the grand jury through October and November, there was sworn testimony over seventy hours from sixty other witnesses. From the transcript, it is apparent that eye-witnesses were all challenged vigorously by the two assistant prosecutors as to the veracity and reliability of their statements. They were not treated with deference as Wilson had been. When the grand jury sessions were over, Mc Culloch again did something completely different from the normal close. He did not instruct the grand jury as to the true bill they should bring in with the specific crime in the indictment. He told them to review all the testimony they had heard and make a decision on whether to bring an indictment.

On Monday night, August 24, Robert McCulloch waited until pitch dark in Ferguson to announce the lack of an indictment in a rambling 45 minute speech that excoriated the witnesses and blamed the media for creating the background for violent protests and demonstrations that had taken place in August. He also said he would release the transcript of the grand jury proceedings, another startling change from the concept of grand jury secrecy.

Legal scholars in the days that followed, analyzed Robert Mc Culloch’s role as prosecutor and his releasing thousands of pages of documents. Noah Feldman at Harvard, summed up, “ It looked like he wanted to appear there had been a public trial, when in fact there hadn’t been. The impression was that the prosecutor wanted an indictment — and didn’t want to be blamed for not getting one.” Many American citizens agreed that Mc Culloch’s three decisions: to allow Darren Wilson to testify and set the basic narrative for the grand jurors, to instruct his assistants to tear down witnesses’ testimony and third not to recommend a specific crime to the grand jury guaranteed there would be no indictment. Finally, waiting until dark which is rarely done insured that Ferguson would explode in fiery riots while across the country from New York to California enraged citizens protested this miscarriage of justice.