Friday, November 28, 2014
Yet Another Teachable Moment is Wasted
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. 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. - Antonin Scalia, 1992
One of the most conservative jurists, possibly in the world, in a Supreme Court case argued more than twenty years ago, defined perfectly what went tragically wrong in the Ferguson case. District Attorney Robert McCulloch eschewed the traditional role of prosecutor and turned the grand jury into a trial jury. Indeed, he sounded more like a defense attorney at his press conference. Look at the charge that was given to the grand jury:
"And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence."
If you're confused, imagine what the grand jury must've been thinking. Basically, McCulloch tied two distinct charges together and instructed the grand jury that if both were not true they had no choice but to no bill. As someone who has sat on a criminal case as a juror, I find this incredible. I cannot conceive of any prosecutor being so stupid as to hamstring himself like that in front of a jury. Putting all one's eggs in a basket like that borders on prosecutorial negligence.
There's only one legitimate reason why any District Attorney would do such a thing. He simply didn't want an indictment. This is the fifth case that this prosecutor has taken against a police officer and the fifth time he has failed to get / seek an indictment. It is a well-established fact that if a prosecutor wants to indict someone, that person is indicted. Period! You've heard of the saying "You can indict a ham sandwich if you want?" Well, apparently, ham was not on the menu in Ferguson.
Once more the wheels of justice have driven over the African American community. In Sanford, Florida, an inept prosecuting team allowed George Zimmerman to get away with murder in an actual trial. This time, the prosecution didn't want to take a chance with a jury, so they soft-soaped what should've been a rigorous and thorough cross examination. Robert McCulloch did everything except kiss Darren Wilson on the lips during his testimony. Then, to make sure there were no loose ends that could gum up the works, he deliberately gave the grand jury an impossible task; one that only a trial jury would and should get.
I honestly do not know whether Darren Wilson is guilty of murder or whether he was a cop who simply panicked under pressure. Neither does anyone else. And that is the problem with what happened here. By no-billing, the grand jury didn't pronounce Wilson guilty or innocent. Instead there is this huge void that is left. The family of Michael Brown will never know true justice and the family of Darren Wilson will never know true vindication, in spite of what his supporters keep saying.
But, more importantly, a country that is bitterly divided just became more so. And here is perhaps the saddest thing of all: this issue isn't going away any time soon. By ignoring his duty as a prosecutor, Robert McCulloch not only did a disservice to the legal community, but the message such conduct sends will have profound repercussions throughout law enforcement as a whole.
Just the other day in Cleveland, a rookie cop shot a 12-year old black kid dead for brandishing a toy gun. The officer's report said he ordered the boy to put his hands in the air. A video taken of the incident, however, showed the cop car pulling up, the cop opening the door and immediately firing on the boy who then instantly fell to the ground. The boy, Tamir Rice, was pronounced dead at Metro Health Medical Center.
Based on the progression of events that are unfolding in this country, it wouldn't surprise me one bit if the cop ends up getting a ticket for speeding.