Bo Statham: Ferguson grand jury proceeding was a sad failure

The recently concluded grand jury in St. Louis County, Mo., constituted a sad failure of our system of justice, and prosecuting attorney Robert McCulluch bears the responsibility for that outcome. A normally conducted proceeding would have found probable cause to indict Officer Darren Wilson in the death of Michael Brown.

Let no one contend this column condones Brown’s behavior in fighting Wilson or the rioting that occurred later during demonstrations. It does not. Rather, it condemns yet another killing of an unarmed black person by a white policeman with what may have been the use of excessive force, if not a criminal act.

A prosecuting attorney may, but is not required to, obtain a grand jury determination of whether to bring criminal charges against an individual. The jury’s only responsibility is to determine if there is “probable cause” to do so; it does not determine guilt or innocence. Unlike a criminal trial, there’s no judge; proceedings are conducted in secret; strict rules of evidence are not required to be followed; and the person being investigated does not have a right to appear or be represented by counsel. Normally, the prosecuting attorney only presents sufficient information to support a finding of probable cause.

McCulluch conducted a different proceeding. In his statement announcing the grand jury’s decision not to indict Wilson, he said “there was a full presentation of all evidence” to the jury. Wilson was allowed to testify for four hours; he was not cross-examined and was asked leading questions by prosecutors tending to show justification for his actions. In effect, McCulluch turned an investigatory proceeding into a trial of Wilson’s guilt or innocence, tilting towards the latter. As Justice Scalia said in United States vs. Williams, “requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory to an adjudicatory body.”

A few facts, reported by McCulluch, clearly support probable cause to charge Wilson. After the struggle at the officer’s patrol car, Brown turned and ran. The prosecutor said the deceased’s body was 153 feet from the patrol car, and his blood was found a further 25 feet. Brown ran more than half a football field to elude Wilson; in running away, he was not a threat to the policeman. Brown was unarmed, and Wilson had no reasonable cause to believe he was. Instead of chasing Brown so far, he could simply have waited for backup officers and restrained Brown without lethal force. Instead, after Brown turned and started toward him, Wilson fired 10 shots, hitting Brown 6 times. In describing the last, fatal shot, Wilson said, “when he gets about 8 to 10 feet away, I look down, I remember looking at my sites and firing, all I see is his head and that’s what I shot.” (Wilson transcript, page 36) Whether a policeman intentionally shooting an unarmed person in the head at close range constitutes use of excessive force is a question to be tried in a court of law, not a grand jury. There was probable cause to indict Wilson.

In most circumstances, police officers perform their stressful and dangerous duties extremely well. Justice demands retribution when they don’t, all too often involving white lawmen and young black men.

Bo Statham is a retired lawyer, congressional aid and businessman. He lives in Gardnerville and can be reached at bostatham@me.com.