How Grand Was That Ferguson Grand Jury? A Couple of Perspectives

A couple of perspectives on the behavior of the grand jury and particularly of Prosecutor Bob McCulloch.

Excerpts from a tweetstorm from lawyer and TV personality Lisa Bloom:

"It is just not a very well-liked community," Darren Wilson testified at p. 238 about Mike Brown's neighborhood. Meaning despised by police….

"That's not an area where you can take anything really lightly," Darren Wilson testified about Mike Brown's neighborhood….

After the shooting, Darren Wilson said he didn't need to go to the hospital. Speaks to his attorney, then agrees to go. p. 248…

Hospital finds no injuries to Darren Wilson other than slight redness on his face, though he says Mike Brown punched him full force twice….

"I know you are in a pretty stressful situation" the prosecutor says to Darren WIlson, doing the exact opposite of cross-examining him. p237…

Darren Wilson says Mike Brown had a handful of cigarillos and MB punched him with that (right) hand. Concedes no pieces of cigarillo in car….

Takes a grand juror (not prosecutor) to ask Wilson if he thought Brown had a gun. "I wasn't thinking about that at that time." No follow up….

Prosecutor's questioning of Wilson so friendly that at the end HE points out no one asked him how Brown was a threat if he was running away….

Sargeant says Wilson told him he did NOT know of stealing incident. Wilson says he DID know about it. No one points out this inconsistency….

Mr. McCulloch: why did you talk about inconsistencies in eyewitness testimony but not inconsistencies in Darren Wilson's testimony?…

The grand jury testimony documents.

A public defender (so they say) on Reddit thinks it might not have been a great idea to even have Wilson testifying if the prosecutor was doing his normal job, that is, trying to get an indictment:

[Wilson testifying] makes it personal for the grand jury, it makes it more about "do we believe him or not" instead of whether the legal standard is met or not, and it provides massive amounts of irrelevant evidence that is confusing and not relevant to the decisions that they need to make.

Probable cause clearly exists with nothing more than the (1) number of shots fired, (2) the fact that the suspect was unarmed, (3) the dispute between medical examiners, (4) even a single witness that says something that doesn't match exactly with the officer's testimony.

I cannot count the number of times a judge has told me "probable cause is an extremely low standard but your objection is noted for the record." In most cases, all it takes is a single witness that says something that MIGHT be a crime or a single discrepancy in testimony from someone claiming to be innocent. If just a single witness says "his back was turned" - THAT is probable cause for every defendant I have ever represented (which are, of course, the poor and people of color). If there is even a single thought of "did he really NEED to pull his gun? Are we 100% sure?" you have PC.

The prosecutor's decision to put all evidence before the grand jury seems extremely suspect to me. If he wanted to simply present enough to indict (which is his job in that situation) he would have only put on the evidence that raised questions about what happened (thereby showing that it is worth pursuing a full investigation for trial) - and let the actual TRIAL system work to resolve innocence or guilt. That is how the system is DESIGNED to work.

I very much doubt he takes that approach when charging drug suspects, because it creates the exact issues of clouding the legal standards and confusing the grand jury into thinking they are deciding innocence or guilt when they are not.

Bonus Fergusoniana: The Crime Lab Analysis Report regarding all the shots fired during the incident, in which Officer Wilson was the victim, the dead Michael Brown the suspect.

Comments

[The_Millenial]

It is great the evidence and testimony was made publicly available because outside/neutral observers and experts will be able to point to potential discrepancies or inconsistencies.

[Bobarian (Mr. Xtreme)]

But too late to do anything about it, other than civil suit?

The shit about him knowing about the robbery and stopping Brown because he fit the description, if true, could have prevented this entire run up. That is the one thing of this that reallly stinks to me.

[UCrawford]

Considering that Wilson's later description of the encounter, revolving primarily around Brown walking down the street, rather than the sidewalk, leads me to believe that Wilson lied on the stand about knowing about the burglary.

The picture Wilson's testimoney paints was he got into a pissing contest about a black guy in a disreputable neighborhood not staying on the sidewalk, and it escalated into a shooting.

I don't doubt that Wilson legitimately feared for his life, and that the actual confrontation probably happened as he said and that it was self-defense. But, like with the Trayvon Martin case, it's a confrontation entirely fueled by Wilson's own incompetence as a police officer. I also suspect he perjured himself on the stand to distract attention from the reality that the shooting happened primarily because he was a shitty cop who didn't know how to handle a difficult interaction with the public.

[UCrawford]

And the prosecutor clearly threw the case and put in less than a full effort at prosecution.

[sarcasmic]

The prosecutor's job was to raise reasonable doubt about his client, the cop. He did his job very well.

[Bobarian (Mr. Xtreme)]

Well his client is really the State, with which I already had reasonable doubt.

[Andrew S.]

This.

If the prosecutor wanted Wilson indicted, he would have been. Especially given this prosecutor's history when it comes to police shootings, there's plenty of evidence to believe that he didn't want it to happen, and stacked the deck against it as much as he could.

[PapayaSF]

But what about the prosecutor's history of being a partisan Democrat? Of being an attack dog for Obama in 2008, threatening to target people if they "lied" about Obama? I'd say there's plenty of evidence that he would have loved to indict and convict Wilson, but he couldn't because the evidence just wasn't there.

[mr lizard]

Um being a democratic partisan democratic hack, and a cop covering shit bag DA are not mutually exclusive.

[UCrawford]

Yup.

Federal politics and local politics create different kinds of corruption.

[paranoid android]

But what about the prosecutor's history of being a partisan Democrat? Of being an attack dog for Obama in 2008, threatening to target people if they "lied" about Obama? I'd say there's plenty of evidence that he would have loved to indict and convict Wilson, but he couldn't because the evidence just wasn't there.

I'm failing to see the connection you are apparently drawing between your first two sentences and the third one. Why does partisan Democrat = would have loved to indict Wilson?

[PapayaSF]

The whole Democratic Party apparatus, from Obama on down, loves to defend blacks against civil rights violations (or at least to pretend to do that). A white Democrat who indicted and convicted Wilson would be a party hero. As it is, he's reviled by his own party. You don't think he didn't see that coming? He had plenty of motive to indict.

[paranoid android]

(or at least to pretend to do that)

You just refuted your own argument.

[PapayaSF]

No, I did not. I'm just saying the Democratic Party both sincerely believes in civil rights, and also cynically uses them for political advantage. It's not a contradiction. Had McCullough gotten an indictment, he'd have been a hero. Instead, he's a goat.

[Cytotoxic]

I'm just saying the Democratic Party both sincerely believes in civil rights, and also cynically uses them for political advantage.

And I'm saying you're wrong and the Democrat party is not a single organism. It's simple: McCullough was in the pocket of Big Cop.

[Les]

the Democratic Party both sincerely believes in civil rights, and also cynically uses them for political advantage.

The Democratic Party that supports kill lists, increased drone strikes, indefinite detentions without trial, raiding medical marijuana dispensaries that follow state law, prosecuting more whistle blowers than all other administrations combined? THAT Democratic Party "sincerely believes in civil rights?"

You have less than no point at all to make.

[Dan Bongard]

There are two kinds of politicians for whom "being a national hero to their party" pays off:

1. Potential Presidential candidates.
2. People looking to cash in on the speaking/pundit circuit.

For anyone else, pissing on local interests for the sake of the national party is a political death sentence. A year from now nobody will care about the Wilson-Brown affair anymore, but the local police will still remember who had their backs. If the DA had indicted Wilson, he'd have been "a hero" for a few months and then he'd have been a has-been ex-DA.

[UCrawford]

A white Democrat who indicted and convicted Wilson would be a party hero.

Who'll still be working for politicians running for re-election in St. Louis County, which is not dominated by black voters.

The national party might think that he's a hero if he goes after Wilson...that doesn't mean his bosses at the county level would be appreciative of the problems that created for them. Nor would the county and municipal cops be happy about working with him.

Federal vs. local government...different incentives

[PapayaSF]

UCrawford: True, but then he's not really being threatened on a national level, more the local level.

In any case, I think it's silly to claim that the way his father died etc. somehow Explains Everything, when he also had motives that ran in the other direction. Plus, there's the simple explanation: he did not have the evidence needed for an indictment, so he didn't get one, whatever he wanted.

[Cytotoxic]

You're like a professional grasper.

McCullough not only had the family ties to police, his work as a horrible prosecutor demonstrates why he shouldn't be the GJ prosecutor. I don't think anyone is saying that his family ties 'explain everything' but they do disqualify him from being a serious prosecutor in this case.

[The_Millenial]

So? That may be the case, but his partisanship likely has nothing to do with it.

[PapayaSF]

Why does his family history involving police have something to do with it, but the fact that a non-indictment gets him the hatred of his own political party have nothing to do with it? You don't think it matters to a huge Obama supporter that he's now considered a racist and reviled by many Democrats? You don't think the non-indictment is a let-down for the president he campaigned for?

[Cytotoxic]

a non-indictment gets him the hatred of his own political

Citation needed. Make it a good one, for once.

[PapayaSF]

Citation needed.

Cripes, I don't have time right now for more of your nonsense. Every left-leaning website in the country is condemning a guy who was an attack dog for Obama in 2008. Google it yourself.

[Cytotoxic]

You never have time to actually BACK UP YOUR CLAIMS.

[Dan Bongard]

The explanation's simple and easy to understand, Papaya, so it is strange that you don't understand it. I'll spell it out for you:

The opinions of local police are vitally important to the political future of a local DA.

The opinions of family are important to most people.

The opinions of "every left-leaning website in the country" mean fuck-all, since not a single one of them is in a position to influence his next election.

And that, dear boy, is why his personal connections to the cops matter and his party's crocodile tears do not.

[DesigNate]

Um, probably because at some point in the future the pundits and the tv crews will move on to the next "OUTRAGE" and whatever nice little pats on the head he got from them would go with them.

Then he's stuck in bumfuck Missourah surrounded by cops who hate him for not keeping the Blue wall up.

This isn't that hard to understand.

[The_Millenial]

He also ran unopposed this year.

[The_Millenial]

I, myself, haven't claimed that it did. However, McCulloch has been in power for over 20 years and was just reelected, so he may feel secure. In addition to this, he has also likely developed strong ties with the local police departments in his role as prosecuting attorney and has the familial history that you mentioned.

I don't know McCulloch and haven't conducted detailed research on him, so I can't really speak to his motives. It's possible he was conflicted since he may have been dealing with competing priorities. After all, individuals are complex and can have a complex set of emotions impacting their decision making at any given time.

Also, I can't speak to what Obama wants or cares about either. If he was truly concerned about these issues then it strikes me as odd that he hasn't made penal reform and drug policy reform higher priorities.

[The_Millenial]

*wide range of emotions

[Marktaylor]

So everyone's going to pretend opinions on this case don't lie on political lines. I'm not sure pretending to be too obtuse to understand his point is a good argument technique, but I applaud the effort to make everyone believe you're an idiot. I'm sold.

[gaoxiaen]

All ham sandwiches are not created equally. This one's a hero.

[Fist of Etiquette]

Prosecutor's questioning of Wilson so friendly that at the end HE points out no one asked him how Brown was a threat if he was running away....

He being Wilson himself?

Sargeant says Wilson told him he did NOT know of stealing incident. Wilson says he DID know about it. No one points out this inconsistency....

Yeah, I was wondering about that. (Also, is Sargeant a proper name or a misspelling?)

[Cytotoxic]

The fact that Bob McCullough was the prosecutor tips the GJ towards farce. Not completely, but if the powers that be wanted the results to be taken seriously they should have appointed a serious prosecutor.

[Bobarian (Mr. Xtreme)]

This, too.

[Pl?ya Manhattan.]

Yeah, given his family history...

[SugarFree]

What do you mean? His father, brother, nephew and cousin were all cops and his mother was a police clerk and he wanted to be a police officer his whole life and his father was killed on the job by a black criminal. I don't see any sort of conflict there.

[PapayaSF]

So the fact that he's a partisan Democrat and Obama supporter means nothing? You don't think that he also had motive in that direction? Look at the shitstorm he's getting now for the non-indictment. You know he saw that coming, right? You don't think he'd have preferred to have played the role of The Defender of Civil Rights Who Overcame His Family History to Bring the Racist Cop to Justice?

[mr lizard]

I'm pretty certain he just got re-elected. His actions do indicate he was championing something though... just can't put my finger on it.

[PapayaSF]

He did just get re-elected. According to Wikipedia, he often runs unopposed.

[UCrawford]

And it's not black voters who keep him in office. Go read the book "Mapping Decline" about how St. Louis breaks down racially...McCulloch's prosecutions are designed to keep the majority of voters and the people he works with (cops) happy. The people of Ferguson are not representative of those groups.

[Cytotoxic]

So the fact that he's a partisan Democrat and Obama supporter means nothing?

Pretty much.

[Dan Bongard]

So the fact that he's a partisan Democrat and Obama supporter means nothing?

Correct.

[SugarFree]

And remember kids, all it took to get this grotesque spectacle off the ground was a few weeks of protest/rioting.

[Adans smith]

just another screw up by the D.A.It makes it look like the fix was in,and maybe it was.Lying ,stone walling,arresting reporters,over use of force in the summer,dressing like Delta Force and waiting till well after dark when crowds have gathered to release the verdict. Have I missed anything?

[mr lizard]

Well it's not really fun to play laser tag before dark? You can't see the beams.

[CampingInYourPark]

[Harvard]

All this angst over a fat fuck thug that should have been capped by the grocery clerk a millisecond after his ham tightened on the clerk's neck.

None of you have the rocks to either clerk in that shithole or police it.

[SugarFree]

The Internet tuff gai is here, y'all.

[HeteroPatriarch]

Red herring.

[Andrew S.]

Tulpa (Tibetan: ???????, Wylie: sprul-pa; Sanskrit: ??????? nirmita[1] and ??????? nirm??a;[2] "to build" or "to construct") also translated as "magical emanation",[3] "conjured thing" [4] and "phantom" [5] is a concept in mysticism of a being or object which is created through sheer spiritual or mental discipline alone. It is defined in Indian Buddhist texts as any unreal, illusory or mind created apparition.

[RBS]

Well, he is a legend in his own mind.

[Andrew S.]

I was going more with the apparitions (sockpuppets) he creates, but that works too.

[Pl?ya Manhattan.]

He's running at least 3 today.

[Agile Cyborg]

Yea, I definitely and strongly prefer not killing humans. Sorry, brah Harv, that my rocks don't get you off. Maybe if I spread my perky cheeks and gape my pooper you'll get a plumpy? Shit, just tryin' to win freunds, boo Harv.

[Notorious G.K.C.]

"If he wanted to simply present enough to indict (which is his job in that situation)"

I'm sure prosecutors often *act* as if that's their job, but it ain't. If they act like their job is to get indictments, the grand jury needs to restrain them.

Grand juries need to step up, in *all* cases, and at the very least ask to look at witness statements which help the suspect (they can consider hearsay if they want). If they don't, and rely only on what the prosecutor feeds them, they're not doing their duty.

Even assuming a couple witness statements, *taken alone,* may constitute PC, if the GJ has the benefit of *lots* of witness statements, they need to evaluate PC on the basis of all these statements, not just those which would help a prosecutor.

[Notorious G.K.C.]

Ex) If all they have is the weepy women saying the suspect raped her, that could be PC. But if they *also* have witnesses that the suspect was elsewhere at the time, that there was never a proper lineup, etc., then that can deflate the probably cause.

[Sudden]

thinks it might not have been a great idea to even have Wilson testifying if the prosecutor was doing his normal job, that is, trying to get an indictment:

Except this was never a normal grand jury proceeding from the get go as there never would've been a grand jury proceeding absent the political pressure. This was a dog and pony show to appease the mob. The physical evidence never supported indictment.

[Cytotoxic]

Doesn't ameliorate the fact that McCullough was a terrible choice for prosecutor and probably did not do his job.

[gaoxiaen]

Which is probably why he was selected for this particular case.

[Pl?ya Manhattan.]

http://www.theonion.com/articl.....hit,37541/

[Warty]

Clusterfucks within clusterfucks. This clusterfuck is three clusterfucks ahead of the other clusterfucks.

[The_Millenial]

Warty, Warty, Warty

[Warty]

They will say that I have shed innocent blood. What's blood for, if not for shedding?

[The_Millenial]

Sustenance?

[LynchPin1477]

Pudding.

[SERENITY NOW!]

sausage?

[mr lizard]

Flavor?

[gaoxiaen]

Hot and sour soup?

[BuSab Agent]

Keeping Kotex in business?

[Almanian!]

Nixon...er, Hitler?

[Bobarian (Mr. Xtreme)]

Did you say that while looking in the mirror?

If so, just try to relax your sphincter and 'lie back and think of England'.

[LynchPin1477]

It's clusterfucks all the way down.

[Agile Cyborg]

A Mobius Clusterfuck is the worst sort of Clusterfucking.

[Notorious G.K.C.]

It's never the grand jury's job to ask, "can we find a witness, any witness, who says the suspect is guilty?" Prosecutors will of course browbeat them into acting precisely in this way, which is why they need the balls to stand up to prosecutors.

[Bobarian (Mr. Xtreme)]

Maybe we could get a GJ to indict a prosecutor or two for prosecutorial misconduct while we're at it?

[Notorious G.K.C.]

I think I see - you're being a tad sarcastic.

[Bobarian (Mr. Xtreme)]

Maybe, just a little.

[Notorious G.K.C.]

When grand jurors report for duty, I'd have them watch some sort of film about great grand juries of the past - eg, those who investigated the mob, *and* the grand jury which refused to indict Zenger for criticizing the government.

Remind them that the prosecutor works for them, not vice versa, and they need to think carefully before messing up someone's life with a criminal prosecution.

[LynchPin1477]

A public defender (so they say) on Reddit

Seriously Doherty? Seriously?

[Sudden]

I really should've been a journalist. Get to sit around all day wearing sweatpants, eating cheetos, and reading reddit.

[tarran]

Having witnessed the early phases of a couple of criminal prosecutions up close, my experiences match the reddit guy's assertions.

Basically, the bar for a prosecution is stunningly low: is there a set of alleged facts which would constitute a crime.

So you can have a situation like a detective who at 9AM privately questions whether the assault he is investigating and alerts the defense attorney to the existence of some exculpatory evidence who then at 9:30 is standing before a magistrate filing an application for contempt, and at 10:00 the magistrate while questioning the truthfulness of the victim is approves the complaint for trial.

[tarran]

should be:

whether the assault he is investigating actually occurred

[Mark22]

The prosecutor wasn't trying to get an indictment. Under normal circumstances, he probably wouldn't even have taken this case to a grand jury.

[Notorious G.K.C.]

He could have decided, on his own responsibility, not to prosecute.

But who wants that kind of responsibility?

[Rorschach Carlyle]

Now that you've boned up on the Wilson case, perhaps Reason can walk us through the inconsistencies in the Warren Report.

[Notorious G.K.C.]

You know, I would say that *anyone* should be able to call evidence to the attention of a grand jury (with the judge screening out threats and bribe offers). A suspect should be able to write, "dear grand jury, please look at the testimony of Mr. Green, who said the guy loitering near the library didn't look like me."

[tarran]

The problem is that there is no decent solution:

1) To investigate crimes effectively, a person has to be well trained and have a fair amount of experience.

2) If we defer to the professional crime investigators unquestioningly, they can frame anyone they want to for a crime (at least until it goes to trial), meaning some check has to be put into place with no incentive to defer to those guys

3) If the check is operated by people who do it for a living or frequently, then there is a good chance they will form collegial bonds with the investigators and begin deferring to them because they are good guys.

4) If the check is operated by people who are doing it for the first time and who have no collegial bonds with the investigators then they won't know what they are doing and can end up being led by the nose by the investigators.

I really don't have an answer for this problem (other than ending the monopoly court system and having smart entrepreneurs invent solutions and get them into use via the free market - and while they are satisfying my pipe-dreams providing my daughter with her free non-pooping pony).

[Notorious G.K.C.]

I didn't say let the grand jury present anyone and bring them to trial (at least not in the stark way I just put it), but that they should ask to see both sides of the cases the prosecutor brings to them. So they can be the shield the Constitution intends them to be.

[gaoxiaen]

Non-eating would be another nice option.

[Homple]

"If he wanted to simply present enough to indict (which is his job in that situation)"

So what are we to think when a prosecutor gets a ham sandwich indictment of a drug dealer; he's just doing his job?

[PapayaSF]

"This issue about 'charging,' which I find to be, sort of, a racially-tinged, offensive word..." ? Lisa Bloom

[Homple]

What do you expect from a TV personality?

[Pope Jimbo]

@RBPundit Listen up, sports announcers! You can't say a player charged down the field. Another racist team -- San Diego Chargers!

This made me laugh because we had to put up with a week of outrage here in Minnesoda when the Redskins came to play. I'm sure the same amount of people would actually show up when the Chargers came to play if this gains any traction.

[Raston Bot]

He emptied his magazine, which held 12 rounds of .40, from his Sig P229.

Five bullets were recovered from:

1. cop car
2. right side of back
3. right side of chest
4. right side of head
5. roadway

12 casings were recovered from:

1. four from grassy strip between road and sidewalk
2. eight from the road

[Rorschach Carlyle]

Perhaps there was another shooter on the Grasy Knoll?

[AD-RtR/OS!]

Had to be, just had to be.

[mr lizard]

I would actually be ok with this grand jury... If every grand jury for every accused person in the country were run like this one

[The Late P Brooks]

The prosecutor's decision to put all evidence before the grand jury seems extremely suspect to me. If he wanted to simply present enough to indict (which is his job in that situation) he would have only put on the evidence that raised questions about what happened (thereby showing that it is worth pursuing a full investigation for trial) - and let the actual TRIAL system work to resolve innocence or guilt. That is how the system is DESIGNED to work.

Fucking CRAZY TALK is what that is.

[AD-RtR/OS!]

I think the prosecutor was using the Grand Jury in another one of its functions:
To discover the truth of a matter - To investigate.
That is what they did, and they determined that Darren Wilson was not culpable for his actions that day, but that they were within policy.

[JeremyR]

I think one of the problems with the justice system is that they try for indictments, not finding out the truth of what really happened.

We should see more cases like this, where the prosecutor tries to find out the truth, not just rack up a conviction/indictment.

[Cytotoxic]

There's no reason to believe McCullough tried to find the truth.

[Almanian!]

YOU CAN'T HANDLE THE TRUTH!

/had to do it

[Richard Rider]

This indicting percentage is an awesome finding. Thanks!

But it shows how useless a Grand Jury is, when it comes to criminal prosecutions. They are a rubber stamp for the DA's. And DA's almost NEVER bring a suspect police shooting to a Grand Jury for consideration. Indeed, they likely would have not brought THIS shooting to the Grand Jury, except for the widespread racial pressure.

I'm a MAJOR critic of law enforcement on several issues. Unwarranted shootings are included. Too often police are exonerated in really bad shootings (and beatings), when they shouldn't be.

But THIS Ferguson shooting WAS warranted, as I see it. This 6' 4", 300 lb bouncing baby boy was NOT to be trifled with. And certainly not wrestled with. The cop had little choice if he wanted to survive the encounter.

[UCrawford]

Based on what I read out of the testimony, I agree that the incident had escalated to the point where the officer legitimately feared for his life and that the shooting was probably warranted once Brown went for him.

Based on that same testimony, though, the situation only got to that point because Officer Wilson decided to pick a fight with a 300 lb guy for not walking on the sidewalk. Then he lied about it being tied to a burglary that he knew nothing about, to cover his ass.

I don't think Wilson should have been indicted for murder (even if the DA was rigging the grand jury). I do think he should be fired for incompetence.

[FUQ]

This ^