The Failure To Indict: Things Become Clearer

Lay not that flattering unction to your soul
That not your trespass but my madness speaks.
It will but skin and film the ulcerous place
Whilst rank corruption, mining all within,
Infects unseen.
Hamlet, Act 3, Scene 4



Like an unlanced boil with the potential to infect the entire bloodstream, the Ferguson grand jury decision not to indict Officer Darren Wilson for the killing of Michael Brown ensures that things will fester and infect not only that Missouri town, but also the entire United States.

Given that almost all grand juries hand down indictments, the failure of the Ferguson jury to do so is itself cause for scrutiny. That its failure is charged with heavy racial overtones and bias on the part of the prosecutor makes such scrutiny even more urgent.

While the normal procedure is for the prosecutor to present just the evidence needed to secure an indictment, things were done differently in Ferguson:

Over the course of three months, St. Louis County Prosecuting Atty. Robert McCulloch asked the jury of nine whites and three blacks to hear virtually every piece of evidence in the case: witnesses who both supported and contradicted police Officer Darren Wilson's account, three autopsy reports, bloodstains and shell casings.

While McCulloch claims that this was done in the interest of full transparency, others are dubious:

"This was a strategic and problematic use of a grand jury to get the result he wanted," said Ronald S. Sullivan Jr., director of the Harvard Criminal Justice Institute at Harvard University. "As a strategic move, it was smart; he got what he wanted without being seen as directly responsible for the result."

The dumping of all documentation had the effect, likely intended, of creating reasonable doubt in the jury about whether there was probable cause for an indictment.

As well, McCullough presented no challenge to Officer Darren Wilson's testimony. Legal experts say this failure

prompted jurors to accept at face value Wilson's testimony that he feared for his life as Brown allegedly charged at him after he punched the officer and tried to grab his gun.

"A first-year law student would have done a better job of cross-examining" Wilson, said Benjamin Crump, a lawyer for Brown's family. "When was his credibility ever challenged?"

What explains McCullough's successful apparent effort to manipulate the grand jury? Answers are suggested by the prosecutor's past.

“I couldn’t become a policeman, so being county prosecutor is the next best thing,” Mr. McCulloch, who lost a leg to cancer as a teenager, once told the St. Louis Post-Dispatch. He’s unabashedly proud of coming from a police family. His father, his mother, a brother, an uncle, a nephew and at least one cousin all have worked for the St. Louis police department.

When he was 12 years old, family tragedy struck:

Fifty years ago – in July, 1964 – a fleeing black criminal snatched a police officer’s gun away during a struggle and then shot and killed Paul McCulloch, a St. Louis police officer and the future prosecutor’s father.

Such a trauma would have a long-term impact on anyone. Unfortunately, it appears to have left a bias rendering McCullough unfit for his role as St. Louis County prosecutor:

At least twice since becoming county prosecutor in 1991, Mr. McCulloch has been involved in controversies over what he did – and didn’t – present to grand juries in cases involving police officers.

Both of those cases involved black men and their interactions with police.

Despite his checkered past, McCullough ignored a petition signed by 70,000 people requesting him to step aside for the Wilson grand jury investigation:

“I have absolutely no intention of walking away,” from the case, Mr. McCulloch said, adding he had been the county’s prosecutor for “24 years, and I’ve done, if I do say so myself, a very good job.”

In light of the fiasco under his watch in Ferguson, many, I suspect, would disagree with his glowing self-assessment.