Hours after revealing the grand jury had reached a decision and months after police officer Darren Wilson shot and killed 18-year-old Michael Brown, St. Louis County Prosecutor Robert McCulloch announced late Monday night that Wilson would not be indicted. As communities around the country and across the world reacted to the decision, legal experts told ThinkProgress how unusual — and in some cases troubling — the process was that brought about this outcome.
Both supporters of McColloch and those demanding his ouster stressed the uniqueness of the case and the national media attention it garnered. But law professors and legal experts had sharply varying views on whether the presentation of the non-indictment and legal procedures were followed appropriately, adequately or fairly.
A long, late night announcement
McCulloch has been widely criticized for burying the long-awaited announcement in a lengthy press conference, revealing the outcome only after he criticized the role the media and social media played in the public perception of the case. “The most significant challenge encountered in this investigation has been the 24-hour news cycle and the sensational appetite for something to talk about, following closely behind with the rumors on social media,” he said.
Ben Trachtenberg, an associate professor of law at the University of Missouri School of Law, said the entire announcement “read like a closing argument for the defense,” while Susan McGraugh, an associate professor at the Saint Louis University School of Law, said she was “furious” when she watched it.
“Bob McCulloch took a very defensive posture,” McGraugh said. “It was a poor choice to be so confrontational in presenting a grand jury verdict that he had to know would upset a large number of people. He should have left out the editorializing.”
Marjorie Cohn, a professor of criminal law and procedure at Thomas Jefferson School of Law, said the way McCulloch presented the facts to the public was unlike anything she had ever seen. “In 98 percent of cases, the prosecutor would just announce the grand jury decision and that’s it,” she said. “He would not characterize the evidence defensively, or attack the media.”
However, Andrew Leipold, the director of the Program in Criminal Law and Procedure at the University of Illinois College of Law, said McCulloch’s detailed presentation of the case before revealing the decision was necessary.
“The problem is that once he tells the outcome, no one’s going to listen anymore,” he said. “If you’ve got something you want people to hear, then you’ve got to give that first. He was just trying to make it clear why he’s treating this as an unusual case because of the intense media attention and because of the fact that there were a lot of wild rumors going on. I don’t really fault him for the effort.”
A desired outcome
The astonishing rarity of a grand jury declining to indict a suspect has led many to believe that McCulloch did not make a sincere effort to prove probable cause.
“The prosecutor did not want an indictment, and he passed the buck to the grand jury to make that decision,” said Cohn, who is also a former president of the National Lawyers’ Guild. “It was clear the prosecutor was partisan in this case, and not partisan in the way prosecutors usually are, which is to get people indicted.”
McGraugh agreed and said that McCullouch’s presentation of the evidence was in stark opposition to his assigned role. “His duty is not to be a defense attorney. His duty is to prosecute people who break Missouri law,” she said. She then wondered whether the grand jury “consciously or unconsciously got a message about what he wanted.”
But Leipold and others were more hesitant to draw conclusions about McCulloch and his intentions.
“Was the prosecutor just using the grand jury as political coverage to reach a result he was already determined to reach? I have no idea, and people who say they do know that’s what’s going on by reading the newspaper accounts and the blogs, well I guess they’re just a lot smarter than I am,” he said.
Trachtenberg agreed that McCulloch had no choice but to treat the case differently than most prosecutors.
“Traditionally the saying is if a prosecutor doesn’t get an indictment, it’s because he doesn’t want to get an indictment,” he said. “I don’t necessary think that’s the case here because I think this is the type of case where the prosecutor had no choice but to present it to the grand jury because the case was so sensational.”
Grand jury as a trial jury
One common critique of McCulloch’s prosecution of Wilson was his use of the grand jury process. Typically, grand juries exist to determine if there is probable cause to charge a suspect with a crime, a fairly low legal threshold that allows for some uncertainty. But McCulloch, attorneys said, treated the grand jury proceedings as a criminal jury trial by presenting them with all available evidence both for and against charging Wilson.
Leipold told ThinkProgress he thinks McCulloch made the decision to “not hold anything back” because of the intense media scrutiny.
“This is an example of the prosecutor saying…no matter what the outcome is, if we don’t present witness X or present the forensic reports, people are just going to say this is an inadequate investigation and either we’re railroading the police officer if we indict or we’re covering up if we don’t,” he said. “Let’s just present it all and let the chips fall as they may.”
But the presentation of all of the evidence to the grand jury struck other legal experts as inappropriate.
“[McCulloch] put the grand jury in the role of being a trier of fact, which is not its role,” Cohn said. “The grand jury was put in the position of basically being a jury, but in a one-sided, closed proceeding. The only people inside the grand jury room are the grand jury and prosecutors.”
In contrast, she said, “In a trial, there are lawyers on both sides, witnesses, and the evidence is presented in an adversarial way.”
Making the grand jury weigh evidence and question witnesses also shrouded that process in secrecy — -a factor that led to the “rampant speculation” McCulloch criticized in Monday’s night press conference, McGraugh said.
“People could do nothing but speculate because he was using a secret grand jury proceeding,” she said. “He didn’t acknowledge that people had to speculate as a result of his own actions.”
She added that even within the realm of grand jury proceedings, the case spoke to a lack of “equal treatment under law.” “The law was not applied to Officer Wilson the same way it would be applied to someone who wasn’t a police officer,” said McGraugh, who previously worked as a trial attorney and spent eight years at the Missouri State Public Defender’s Office. “If my client killed someone tomorrow and claimed it was in self-defense, he would be arrested and required to post bond while awaiting a grand jury decision. Then, the prosecutor would not be allowed to bring both sides of the story into the building.”