BY CAYLA HARRIS – Former N.Y. Chief Judge Sol Wachtler once famously said that a prosecutor could persuade a grand jury to “indict a ham sandwich.” But St. Louis County Prosecutor Bob McCulloch couldn’t do just that in the grand jury prosecution of white police officer Darren Wilson for the Aug. 9 murder of unarmed black teen Michael Brown in Ferguson, Mo.
The task of the grand jury, according to The Washington Post, was to decide if there was “probable cause to believe Wilson committed a crime.”
At least nine of the 12 members of the grand jury would have needed to believe this to grant an indictment for murder, voluntary manslaughter or involuntary manslaughter.
The answer should have been simple – of course there’s probable cause. There are too many missing facts and contradictory details not to be, especially on Wilson’s part.
Wilson may not definitely be guilty, but of course there’s enough probable cause to bring him to trial, to investigate further.
This particular grand jury case was quite unusual, however. The jury listened to a four-hour testimony from Wilson and heard from over 60 contradictory witnesses, The New York Times reported. Typically, the grand jury doesn’t hear from the accused or more than a few key witnesses that support the prosecution.
The prosecution usually provides jurors with a specific charge to keep in mind in their ruling as well. McCulloch presented only a list of possible charges to consider, which an unnamed grand juror described Jan. 5 as “muddled and untimely” in a lawsuit the member filed against McCulloch.
The juror noted a desire to “advocate for legislative change to the way grand juries are conducted in Missouri” in the lawsuit, which, if won, would allow the juror to speak openly about the secretive meetings of the trial.
The trial also lasted about three months longer than the average grand jury case.
These facts have subjected McCulloch’s prosecution efforts to criticism, as the Supreme Court ruled that a prosecutor does not have to present “substantial exculpatory evidence” to a grand jury in United States v. Williams.
That literally means that McCulloch was allowed, by law, to exclude evidence in the grand jury trial that may have proven Wilson’s innocence. Although there was really no such evidence, McCulloch could have easily left out all of the witness statements supporting Wilson, as well as Wilson’s testimony altogether.
The most important detail to acknowledge, though, is McCulloch’s decision to allow a witness who was not even at the scene to testify. McCulloch admitted in an interview with radio station KTRS on Dec. 19 that the witness, Sandy McElroy, “clearly wasn’t present when this occurred.”
He also said he decided early on to present witnesses regardless of their story, even ones who were “clearly not telling the truth.”
McElroy, specifically, heavily supported Wilson’s testimony and described Brown charging at the officer “like a football player, head down.” This quote gained national attention from many news sites, including The Smoking Gun, ABC News and Fox News. The Washington Post even questioned its credibility in November.
It’s no wonder Brown didn’t get any justice – the prosecution wasn’t even on his side. In fact, the prosecution was on Wilson’s side.
NBC legal analyst Lisa Bloom has not been quiet about her distaste with the prosecution efforts.
“What we saw from Bob McCulloch tonight was a defense attorney presentation dressed up as a prosecutor doing the presentation,” she told NBC on the evening of the decision.
She also took to Twitter to discuss specifics about the trial.
“‘I believe I closed my eyes,’ Wilson says re the altercation at the car. If so, how did he see Brown’s supposedly demonic face? (Not asked),” she tweeted. “‘You said you felt threatened in that area bc there is violence & guns & everything’ pros says to Wilson in GJ. Actually he didn’t say that.”
What it comes down to is whether or not there was enough evidence to believe that Wilson may have committed a crime. Key words: may have.
In his official testimony, which was released to the public Nov. 24, Wilson identified an initial struggle inside his police vehicle after Wilson approached Brown as a robbery suspect. The conflict resulted in two shots, one hitting Brown in the hand. Ten shots were later fired when Brown ran away from the vehicle, then turned around and charged the officer. Brown was hit six times.
But the defendant’s testimony alone should not have been enough to result in no indictment.
In an analysis of the witness statements from PBS, over half were reported to have said Brown had his hands up in surrender when shot. More than half also said Wilson began shooting while Brown was running away, although he was not hit until facing Wilson.
Medical professionals have said forensic evidence supports the hands-up claims as well. Forensic pathologist Cyril Wecht said just this in an interview with CNN, calling the case “[an] absurd scenario … in terms of Wilson’s defense.”
There are also questions of how well the Ferguson Police department handled the incident. After the shooting, Wilson returned to police HQ and washed blood – potential evidence – off his body, the Huffington Post reported.
The Huffington Post continued on to acknowledge other mistakes. The first officer to interview Wilson failed to take notes, investigators didn’t initially measure the distance between Brown’s body and Wilson’s vehicle, Wilson’s gun was not tested for fingerprints and the first medical examiner at the scene did not take crime scene photos “because the camera’s batteries were dead.”
After filing through the immense evidence from the investigation and grand jury trial, there are only two questions to be answered:
Was there enough evidence to put Wilson in prison for Brown’s death? Maybe. But was there enough evidence to at least put Wilson on trial? Absolutely.