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The Price of Justice and a Ham Sandwich in Ferguson, Missouri

It’s a commonplace in the criminal justice system that a competent prosecutor can indict even a ham sandwich. While that may be true, and St. Louis County Prosecutor Bob McCulloch is by reputation competent, Officer Darren Wilson, who shot Michael Brown to death on the streets of Ferguson, Missouri a few weeks ago, is hardly a ham sandwich.

A police officer who kills in the line of duty almost always has public opinion and the investigating authorities on his side. A police officer represents the thin blue line between criminals and the rest of us, and takes risks on our behalf every day. Defining an officer’s error as criminal is as difficult as prosecuting tasks get and complicated further when the prosecutor knows that other officers will view even a prosecution – let alone a conviction – as a betrayal.

McCulloch, the elected County Prosecutor responsible for this case, has more on his plate than just making sure justice is served for Wilson, Brown and their respective families. The public trust in the justice system is at stake and events since the Brown homicide show that there is very little of that trust in the majority black community being policed by Ferguson’s virtually all-white police force.

While McCulloch may be competent and may be able to hold the scales of justice true here, there is ample reason to question whether he is the right person for the task because justice, as Felix Frankfurter famously wrote, “must satisfy the appearance of justice.”

McCulloch’s St. Louis police officer father was killed by a black suspect while responding to a call back in 1964. According to CNN, McCulloch’s mother, brother, an uncle and a cousin worked for the same department. McCulloch was caught by the St. Louis Post-Dispatch publicly misrepresenting grand jury testimony in a homicide by police case from 2001, a case cited by State Senator Jamilah Nasheed, who has led a citizen’s petition to have McCulloch removed from the Brown homicide case.

McCulloch’s critics also claim he has never prosecuted a police officer for excessive use of force. That is a difficult thing to prove, but not a difficult thing to believe, and the black community of Ferguson, with a long list of grievances regarding their mistreatment under the whip of the local law, believes it. They also know that they are consistently the subjects of police harassment and lawlessness, up to and including homicide.

Note that “homicide” does not denote a crime, but simply that one human being caused the death of another. (The death certificate in a lawful execution by the state reads “homicide.”)

McCulloch’s office began presenting evidence on the Michael Brown case to a grand jury on August 20, and that presentation is expected to last until October, when the question the grand jurors must answer will be whether there is probable cause to believe that Brown’s homicide by Darren Wilson was criminal in nature.

None of us know what that grand jury has heard and will hear, but the people who have been in the streets of Ferguson every night since Brown’s death have heard from at least three eyewitnesses that Brown, 18, was shot at least six times from a distance. They believe Brown had his hands up when he was killed, a belief reflected in the chant that has been the hallmark of the Ferguson demonstrations, “Hands up! Don’t shoot!”

Brown’s family released the results of an autopsy they arranged, which verified that there were at least six shots fired, because Michael Brown was hit with six bullets, from a distance that left no gunpowder residue or stippling on his body. The only finding in this autopsy that might conflict with those eyewitness accounts was an entry wound on Brown’s right bicep, which would have been on his triceps if his hands had been raised.

From the other side of the case has come nothing but self-serving leaks from the Ferguson Police Department that suggest the homicide was self-defense. The official autopsy has not been released, nor has Officer Wilson’s contemporaneous report or a transcript of the radio traffic leading up to the homicide. The case took another bizarre and disturbing turn on August 21, when the Ferguson Police Department claimed Officer Wilson did not write a report of this killing.

A couple of pages of the normally voluminous report on an officer-involved shooting could temporarily get lost because there are so many people involved in such an investigation as well as many pages documenting their work. Losing the primary report, the one by the shooter, would be an outrageous blunder, but not requiring the shooter to write one makes no sense at all. It’s normally the primary source document from which every other investigator would work. The Ferguson PD on August 21 released two pages, neither containing a word of prose by Officer Wilson… or anybody else.

Normal police procedure is that every officer or technician who touches a serious felony writes a narrative of what he did, when he did it, and why he did it. An officer who shows up after the shooting to canvass the area for witnesses would record the contact information for every individual to whom he spoke, whether or not they gave good information. But there is nothing normal about this case, and most of the differences trend in the direction of secrecy.

Secrecy by the police department is a major part of what has outraged people. The necessary and normal secrecy imposed by the grand jury process simply adds to doubts about McCulloch’s willingness to prosecute police. There is an alternative open to McCulloch that is not secretive and would allow the voters to judge the quality of his work for themselves.

Grand jury testimony is supposed to be secret but it is recorded. The St. Louis Post-Dispatch somehow acquired recordings of the testimony in that 2001 police killing, but that is unusual. So far, all the public has heard about the grand jury proceedings is that McCulloch has invited Officer Wilson to testify, which is a highly unusual move, because he is theoretically the target of the investigation. If the homicide was criminal, he was the perpetrator.

In a normal case, the grand jury’s target has more to lose than to gain by testifying, which is why you seldom see a potential defendant demanding that “opportunity.” This case is not normal. There’s an officer-involved shooting with no offense report by the officer. That means that the only way the grand jury can hear that Officer Wilson feared for his life when he killed Michael Brown is to hear it from Officer Wilson. If Officer Wilson did not fear for his life at the moment he fired, then this homicide was a crime.

The grand jury, after hearing the evidence presented by the prosecutor, must vote a “true bill” (also known as “returning an indictment” or simply “indicting”) or a “no-bill,” a finding of no probable cause to proceed to a felony trial. A grand jury differs from a trial (“petit”) jury in that it has no power to punish a criminal defendant, just to push the defendant to a felony trial, where the government has to prove the crime beyond a reasonable doubt. Because the target of the investigation faces no punishment, he is not “in jeopardy,” and therein lies another big advantage for the prosecutor. Even if he does not get a true bill out of the grand jury, the case can be presented again to another grand jury if additional evidence turns up.

This brings us back to that famous ham sandwich, which any competent and suitably motivated prosecutor could indict. The other side of the bread contains this bit of raw meat: A competent prosecutor could also get a serial killer no-billed. Behind the grand jury doors, the only lawyer in the room, the prosecutor, is free to determine the order of presentation and to impeach testimony or not. The presentation to the grand jury is storytelling and how the story unfolds is completely under the control of a professional who tells stories for a living. Grand jurors only sit for one term, and much of this term will be consumed by this one case.

The control most prosecutors exert over most grand juries is so strong that we have a name for a panel that either refuses to indict someone the prosecutor wishes to indict or indicts someone the prosecutor does not wish to indict: runaway grand jury. Runaway grand juries are rare, and if people in Ferguson don’t know that, it’s fairly certain that they will be told. Put another way, the grand jury will almost certainly deliver whatever result McCulloch wants and the people who have been out on the street are going to immediately grasp that, even if they do not understand the gory details.

There is a way to shine light on the prosecutor’s work that is also under the prosecutor’s control. Without the grand jury’s blessing or even knowledge, the prosecutor could file a document directly with the trial court called an “information” alleging whatever degree of criminal homicide he thinks could be shown by the evidence. Then he must come into a public courtroom with enough evidence to show probable cause to proceed to a trial, the same probable cause that a grand jury needs, but this time presented in a courtroom where Officer Wilson would be represented by a lawyer, and the public could attend.

The political problem with achieving the transparency that comes with public airing of evidence is by filing an information, McCulloch would then “own it.” His oath, even though based on “information and belief,” could be used as electoral cudgel to back up a claim that McCulloch “sold out a policeman.”

A more practical problem is that an information must be based on a sworn complaint. The person in the best position to swear out the complaint, the person who was present before and after the homicide, was Michael Brown’s friend, Dorian Johnson.

The problem for McCulloch in using Johnson’s oath to support an information is, according to the Associated Press, Johnson admits to having been with Brown earlier that day and involved in the shoplifting of cigars (captured on a surveillance video) just prior to the shooting. To put it as coldly as a lawyer must, the law presumes that all thieves are liars, with the possible exception of Wall Street bankers.

Shoplifting, along with other kinds of theft or fraud, is said to “impeach” a thief’s testimony. It would be a stretch for a professional prosecutor to recite in an information that he believes the affidavit of an admitted thief. The question for McCulloch is whether it’s a stretch worth making in the interest of bringing the Michael Brown case into the sunshine.

There is one more way to shine some light on this investigation. If the people in the street demanding transparency were a bit better organized, they would be filing as many affidavits as there are witnesses to the shooting, because such filings appear to impose a duty on the prosecutor “to file an information, as soon as practicable, upon said affidavit.” This procedure, in Sec. 545.250 of the Missouri Statutes, appears to be a legal way to push the case into a public forum, and filing the affidavits would force Prosecutor McCulloch to justify the secrecy he has chosen. In the grand jury room, McCulloch’s choice of order and method and language can communicate that the prosecution wishes to take a dive and it is the method of presentation that is as important to the skeptics as what evidence it contains.

If McCulloch chooses to present the homicide case behind the closed doors of the grand jury room rather than proceeding on an information to have a public probable cause hearing, and Officer Wilson is no-billed by the grand jury, the people of Ferguson will have every reason to believe that what happened in private was not justice, but merely a demonstration that a prosecutor who can indict a ham sandwich can as easily no-bill one.

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The Price of Justice and a Ham Sandwich in Ferguson, Missouri

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