Of all the offensive, insensitive, ignorant, subtly and not so subtly racist comments made in the wake of the grand jury verdict in Ferguson last week, the most annoying and concerning were the ones that claimed justice had been done.
Well, for those of you who think that farce of a trial in Ferguson was justice, let me explain to you something that every objective mind in the legal community knows, including the National Bar Association, that grand jury process was a joke and made a mockery of the justice system. The lead prosecutor, Robert McCulloch, didn’t want a conviction and, just like the five other times he’s taken a police killing to a grand jury, he got the result he wanted and no indictment was handed out.
Let’s start with a very underreported issue in this case, the actions of the prosecution. One of the first things the prosecution did was give the jury an outdated version of the law about when police can use deadly force. In this version of the law that had been found unconstitutional by the Supreme Court almost 30 years earlier, it said a police officer was within his right to shoot and kill a suspect simply for running from the police. That’s it. That’s all a person used to have to do in America for a cop to be legally allowed to shoot them dead and this was one of the first things the grand jury was told. However, the prosecution, many weeks later, did correct their mistake. They handed the grand jury a correct version of the law that said a police officer needs to have a reasonable fear for their safety or for the public’s safety to use deadly force. But when the grand jury was given the correct version of the law, the prosecution did not explain to them what was different between the two versions of the law. (For a more detailed account of just how much of a screw up this was and how purposefully misleading it seems ot have been, check out the clip below from Lawrence O’Donnell.)
Furthermore, in allowing Darren Wilson to testify (for four hours) at this stage of the process, according to Supreme Court Justice Antonin Scalia, violated the purpose of having a grand jury. (I know, I can’t believe I’m quoting Scalia either.)
It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence,neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented. (Source: Think Progress)
So not only was having Wilson testify something he most certainly was not entitled to since his side of the story was something the grand jury really wasn’t supposed to be considering at all, the fact that he was called to testify first is of no small significance. By having him go first in a situation in which he was not going to be cross examined and was not aggressively questioned or challenged by the prosecution, who wanted him to go free, they set his unchallenged testimony up to be the standard by which all other witness accounts would be measured. His story was presented as truth to the jury and any later witnesses who varied from his account would be seen as deviating from the factual account already laid out. And there were a lot of accounts that differed from Officer Wilson’s.
In fact, according to a chart put together by the good folks at PBS, not a single witness agreed entirely with Wilson’s accounting of the events that day and no two witnesses completely agreed with each other. However, one of the most agreed upon things was that Mike Brown was putting his hands up at the time he was shot. So why would the jury ignore this very important bit of agreement? Simple, because like I already said, Wilson’s testimony was presented as truth and anything that differed was, therefore, not credible.
And let’s talk about Wilson’s testimony for a moment. In a break with procedure, one of many in this case, Wilson did not write a report and was not interviewed by police following the shooting. The first time he officially spoke about the incident was six weeks after it occurred and in front of the grand jury. I’m not saying the man lied, but I will say that memory is a tricky thing. Experts have said that every time a person accesses a memory, they alter it and that over time a memory can become completely untied to reality all while the person completely believes it to be true. On top of this, and something any lawyer will tell you, lawyers, police union reps and anyone else looking out for Wilson likely helped guide his testimony just because it’s so hard not to. This often happens anytime a client gives a vague answer about something or says they can’t remember. The person looking out for them, like a tutor with the correct answers, then asks leading questions like “Did you fear for your life after such-and-such happened?” It’s not telling Wilson what to say, per se, but certainly helps him easily come up with a legally beneficial answer. But this is something we’ll never know because Wilson never gave a recorded or documented explanation of what happened in the immediate aftermath of the incident and was thus given plenty of time to “remember” things in a way that best served his legal needs.
But not having Wilson give a statement or write a report following the shooting was far from the only break from protocol in this case. A journalism student from Kansas complied a list of all of them in one article. Some include:
Not taking pictures of the crime scene because the “batteries in the camera were dead.” However, the very minor injuries to Wilson were all documented by the same person who didn’t have charged batteries at the crime scene but then went immediately with Wilson to the hospital. No explanation of when or how her camera got back to working order was provided, nor did the prosecution bother to ask.
Wilson was allowed to wash the blood off himself without having it tested or documented. This would have been important in verifying the validity of Wilson’s claims about where Brown was in relation to him when Wilson first shot him.
The police did not collect fingerprints from Wilson’s gun which he claimed Brown had grabbed.
And many, many more.
I can appreciate the fact that the breaking of protocol is something prosecutors would likely never bring up to a grand jury since they really can only go so far in calling out cops they regularly work with, but it most certainly goes to the overall conclusion myself and many practitioners of law have come to that this case was a tragic joke. More importantly, this all goes to the point that an indictment should have been issued and this case should have gone to trial. There are more than enough discrepancies and problems with Wilson’s testimony if the prosecution had bothered to point any of them out to warrant an indictment. They ranged from Wilson saying he was in fear for his life from a boy who was more than 30 feet away from him and unarmed to Wilson not having injuries that matched up with the pounding he claimed to have sustained at the hands of Brown. All of this is to say nothing of fact eye witness testimony was all over the place except for the almost complete agreement Brown had his hands up. All of which causes many people to feel not getting an indictment was a huge and purposeful perversion of justice on the part of the prosecution that can only be likened to the kind of rulings that regularly came out of courts in the South during the dark days of Jim Crow.
So say what you want about Ferguson, and about the on going protests and the initial riots that followed the announcement of the verdict, but please, please, please don’t say justice was done.
SideBar: Wasn’t it interesting that the announcement was done at night and while the National Guard wasn’t deployed almost as though some people in power wanted the completely predictable and anticipated violence that occurred to break out?