As the old saying goes (and as you are taught in law school), “A grand jury could indict a ham sandwich.” Like all clichés, it stems from some nugget of truth.
Prosecutors have a vast amount of leeway and control when it comes to grand jury proceedings. He or she presents the evidence along with some witness testimony to make a case for indictment, and the jurors vote on it. It’s often acceptable to introduce evidence that would otherwise be excluded at trial pursuant to the rules of evidence (which are convoluted and sometimes nonsensical—which is why all law students usually take an entire course on it).
Unlike what happened in Ferguson, the defendant seldom testifies at these proceedings; the prosecutor will present just enough evidence that is reasonably required to make an informed decision, rather than a thorough analysis of all the evidence, and the transcripts and evidence presented are almost always closed off to the public. In other words, grand jury proceedings are usually fast, relatively brief, simple, private, and straightforward.
Naturally, prosecutors seldom fail at obtaining an indictment. According to the Bureau of Justice Statistics, in 2010, US Attorneys prosecuted 162,000 federal cases and only in 11 instances did a grand jury decline to return an indictment. While it is true that we are dealing with a state court here, where DAs do not always enjoy the same amount of leeway that is afforded to a federal prosecutor, the truth is that it is extremely rare for a prosecutor to fail at obtaining an indictment. While at trial, a prosecutor bears the burden of proving each element of a crime beyond a reasonable doubt, during a grand jury proceeding, he or she only needs to present enough evidence to make the case that probable cause exists—i.e., is it reasonable, or more probable than not, to conclude that the defendant may have committed a crime and thus should be taken to trial? Grand juries will generally vote to indict when a prosecutor recommends it. Clearly, Bob McCulloch did not make such a recommendation here.
It is also worth noting that Mr. McCulloch didn’t even have to open a grand jury investigation—he had the authority to charge Officer Wilson in a preliminary hearing instead, and in fact, this is how most charges are initiated. My fear is that Mr. McCulloch’s reluctance to prosecute, coupled with the vast amount of evidence presented, caused the grand jury in Ferguson to evaluate the case much more critically than is necessary or expected at this stage. Is there enough evidence to elicit a reasonable suspicion that either murder or manslaughter may have taken place? Absol-freakin’-lutely! It blows my mind that the grand jury appeared to conclude that probable cause didn’t even exist for involuntary manslaughter, where mere recklessness—and not intent—is an element of the crime. Is there enough evidence to prove beyond a reasonable doubt that Officer Wilson was guilty of either murder or manslaughter of some degree? Based on the conflicting evidence that’s been brought to light, my hunch is, probably not. But we will never know for sure, and it’s a shame that Mr. McCulloch prematurely stopped this case from running its natural course.
It is easy to say that Ferguson is not about race—that Officer Wilson believed that his life was in danger during his altercation with Michael Brown, who had just committed crime and was behaving belligerently; that he was therefore justified in using deadly force; that it was only the news outlets and social media that warped this into a racial issue; and that a double standard exists when innocent white victims of violent crimes do not receive the same amount of attention or outrage. However, to examine this in a vacuum is dangerous. You can claim that Ferguson shouldn’t be about race, but statistical evidence and history indicate that—even if judges, prosecutors, and legislators genuinely do not believe that they are racist—the criminal justice system clearly has a disparate impact on blacks. (See example statistics here and this recent Stanford study exploring the correlation between perceptions of “blackness” and approval of harsher punishment here.)
It’s this perversion of the legal system that comes down harder on blacks that sadly sets off the vast amount of backlash that we’ve seen. I understand that violence, historically, is a “last resort” of sorts for those who feel oppressed. To me, protests can make a statement, whereas rioting—whether it is Ferguson, related to a sporting event, or at a pumpkin festival (I still don’t understand this one; someone please explain it to me!)—hurts innocent bystanders, widens barriers, and seldom starts effective dialogues. The heart of the issue here, however, is that while those who loot and destroy property at a pumpkin festival or in response to a win or loss in a football game will simply be labeled as hooligans or misdirected youth, blacks will continue to be labeled as thugs or criminals who validate the negative stereotypes that society holds about this group.
While fixing racism is an enormous and seemingly impossible feat that requires universal compassion and empathy, those in power to chip away at the barricades embedded in the legal system should do what they responsibly can to achieve that. I have a lot of faith in the rule of law that governs our country. Personally, I tend to identify more with the prosecution side of criminal law, because I generally believe in the effectiveness of reprimanding those who do bad things and pose as a danger to others. But I do not want to see punishment handed out in an unfair manner. And I am not as idealistic about the individuals entrusted to uphold the system. While I would love to say that the law does not discriminate based on race, age, gender, or economic status, the reality is that the law is much friendlier towards the more privileged. I see it every day in my work. Mr. McCulloch could’ve made a statement and set a nation at ease by merely doing what thousands of prosecutors do every day—present a case that clearly meets the probable cause standard for prosecution. But the jury’s decision here was obviously what he wanted, and he is now able to deflect his own accountability by speaking platitudes about the will of the “people.”
As an Asian-American female, my experiences with racism (and sexism) are hurtful, but vastly different from those of the Michael Browns of the world. But I think that everyone—especially those involved in the law—should challenge himself or herself to see race from a different point of view. Stop belittling those who sincerely defend Officer Wilson’s actions as ignorant. If you are one of those defenders, understand that the black arrest and incarceration statistics don’t lie and that your ability to question how racism remains an issue indicates how fortunate you are to not have to face it on a regular basis. At the end of the day, all of our worldviews are products of our personal collective experiences. We can fight fire with fire. Or we accept that our perception of reality may be very different from someone else’s and make ourselves open to engaging in meaningful dialogue about it rather than close ourselves up with defensiveness. More compassion and empathy would do wonders not only for those charged to uphold our laws, but also for society as a whole.