WASHINGTON, November 25, 2014 – When St. Louis prosecutor Robert McCulloch announced last night that Ferguson police officer Darren Wilson would not be indicted, he raised more questions than he answered.
While Wilson may have been justified when he shot unarmed teenager Michael Brown, the decision to no bill is surprising. It is often said that a grand jury can indict a ham sandwich. That comment is not about the capriciousness of grand juries, but about the grand jury process. It means that even on weak or insufficient evidence, a skilled prosecutor can obtain an indictment.
The grand jury’s job is not to determine guilt or innocence, but to determine whether there is sufficient evidence for a trial. A petit jury decides issues of fact after a trial; that is not the grand jury’s job. Only the prosecutor presents evidence; the defense is excluded from the proceedings. The prosecutor is not required to present the evidence on both sides, but only the evidence that he considers sufficient to persuade the jury to return an indictment.
According to McCulloch, “Fully aware of the unfounded but growing concern in some parts of our community that the investigation and review of this tragic death might not be fair, I decided immediately that all of the physical evidence gathered, all people claiming to have witnessed any part or all of the shooting, and any and all other related matters would be presented to the grand jury.”
McCulloch observed that eyewitness testimony was inconsistent with the physical evidence. That isn’t unusual, and it would have been a reason to acquit Wilson after a trial. It is a petit jury’s responsibility to weigh the evidence and decide matters of fact. The inconsistency of the evidence is not a reason not to indict.
The “data dump” described by McCulloch is highly unusual in a grand jury proceeding. His description of the process sounds much more like a trial, with McCulloch functioning as both prosecutor and defense attorney. The grand jury didn’t indict because McCulloch the defender defeated McCulloch the prosecutor, when only the prosecutor should have been in attendance.
McCulloch’s data dump is easy to understand. Had he gone for a ham-sandwich indictment, he would have been widely criticized for cowering before rioters and a public that seemed to demand an indictment. He wanted to avoid the charge of rigging an indictment by selective presentation of evidence. Yes selective presentation of the evidence is a part of his job.
This grand jury’s decision was poisoned by two things: the threat of mob justice as a tool to coerce the decision; and the decision by McCulloch to act as a defender to ensure that there would be no indictment. It doesn’t matter which way the grand jury decided, the decision would have been open to fair criticism.
Journalists, the media, and social media all played their role in poisoning the process. When cases are tried in public and turned into causes, an outcome that most people can believe is fair and unbiased becomes highly improbable.
The Ferguson decision has to fit into a context, though, and in this case the context is disturbing. Grand juries rarely indict police officers for use of deadly force against innocent civilians.
Homicides committed by on-duty police officers accounted for 3 percent of homicides in 2013. That is probably an underestimate; the FBI’s statistics are based on voluntary reports by local police departments to the FBI. The federal government doesn’t keep track of the numbers.
In 2013, the FBI reported 461 “justifiable homicides” committed by law enforcement. They were counted as justified because the officers weren’t indicted and the Bureau assumed that they were justified. Even though violent crime rates, including homicide, have dropped considerably over the last 20 years, this was a 20-year high.
Why don’t grand juries indict police officers? Part of the reason comes from two Supreme Court decisions, Tennessee v. Garner (1985) and Graham v. Connor (1989). The court ruled that deadly force by law enforcement is authorized when it is “objectively reasonable.”
The standard of objective reasonableness turns out to be slippery, and in fact it usually comes down to the snap decisions of police officers in the heat of the situation. When police shot and killed John Crawford III in an Ohio Walmart, store camera footage seemed clearly to show that Crawford was simply walking through the store, talking on his cell phone, swinging a BB gun that he picked up from a store shelf. Suddenly the police stormed in, in response to a possibly malicious 911 phone call, and shot Crawford who, like many innocent people would, turned to look at the police shouting for him to drop to the ground rather than dropping to the ground.
A grand jury refused to indict the officer, not incidentally white, who shot Crawford who, not incidentally, was black. Why? Objectively, a toy rifle can look a lot like a real one, police officers do get shot at, and in the heat of the adrenaline-fueled moment, an officer might really believe that his life is threatened.
The same scenario played out this week in an Ohio park, when 12-year-old Tamir Rice, who was black, was shot in a park where he was playing with a toy gun. The 911 caller said that the gun was probably fake, information that was not given to the officers on the scene. When suddenly confronted by police, Rice probably did what many 12-year-olds might have done, reach for the gun to show that it was a toy. The police, not knowing that it was a toy, killed him.
The Ferguson context, then, is this: The streets can be dangerous, there are a lot of guns out there, police often respond in a panic rather than with calm reason, and a lot of unarmed civilians, disproportionately black, are shot as a result. And because of the objective reasonableness standard, these incidents rarely go to trial.
The shooting of Michael Brown may have been entirely justified, but the evidence was contradictory; it might not have been justified. Certainly not all the cases of police homicide are justified, yet grand juries are reluctant to convict.
If more of these cases don’t start going to trial, we risk a growing lack of confidence in the police. The black community clearly has little confidence in the police already, but not all victims of police excess are black, and awareness of that is growing. The effectiveness of our police and justice systems depends on perceptions of fairness and competence. It demands trust. Trust is hard to earn and easily lost.
Everyone has a part to play in the problem and in the solution. Police-cams and dash-cams are clearly a good idea that needs to be adopted nation-wide. The standards on police violence must be tighter, making it easier for grand juries to indict police officers. Community leaders should be as concerned about gun violence within the community as with police behavior. Police must earn the trust of the communities they serve, and in return, those communities must learn to work with and support the police.
Everything went wrong in Ferguson, and is still going wrong, but the situation there can at least be instructive for the rest of us. In the pressure cooker of national interest, though, the odds are that we will learn nothing at all.