fresh voices from the front lines of change







Editor’s Note: Following my posts about the Ferguson grand jury decision, a few people have asked why I — and many, many others — still say an injustice occurred. This series of posts attempts to offer some answers.

St. Louis County prosecutor Bob McCulloch’s perversion of the grand jury process in Ferguson yielded an unsatisfying imitation of justice.

Perverted Process

After referring the case to the grand jury, and declining to recommend charges against Darren Wilson, Bob McCulloch’s attempt to shoehorn a jury trial into the grand jury process, without the elements that help to ensure a fair trial, was an intentional “misuse of a grand jury.”

McCulloch’s next decisions would guide the grand jury process in an unusual direction.

  • Dump all the evidence on the jurors and let them sort it out. Prosecutors usually introduce just the evidence necessary to secure an indictment from a grand jury; and then only after investigations have ended. McCulloch decided to present all the evidence to the Ferguson grand jury as it came in, from two investigations that were still underway.McCulloch claimed his decision gave the jury more authority. Now, it looks more like a way to get a decision not to indict — without the prosecutor’s fingerprints on it.
  • “Open” the process to a massive amount of testimony. Prosecutors usually call only a handful of witnesses to testify before a grand jury, to support the evidence for indictment. The witness list is often limited to detectives who worked the investigation. The Ferguson grand jury heard about 70 hours of testimony from 60 witnesses, including three medical examiners.
  • Allow Darren Wilson to testify before the grand jury, for four hours. Prosecutors rarely call suspects as witnesses, and those who are called usually invoke their Fifth Amendment privilege against self-incrimination. McCulloch not only called Wilson to testify, but gave him four hours — about the same amount of time Michael Brown’s dead body was left in the street — to tell his story to the grand jury.

As Dhalia Lithwick wrote, the parade of evidence and witnesses turned the grand jury proceedings “into something that walks and quacks an awful lot like a trial, but without many of the procedural rules that would make a trial truly fair. ”


In a normal grand jury, the prosecutor presents evidence and testimony for just a few days. The grand jury decides whether a suspect should be charged. There is no judge, and there is no opposing council. The grand jury proceedings are conducted in secret, to encourage witnesses to speak freely, and to protect the suspect if the grand jury decides not to indict. A grand jury only needs probable cause to bring charges. If the grand jury recommends indictment, the next step is usually a jury trial.

In a jury trial, each party has an attorney to protect their rights and interests. The trial follows a strict process, which is controlled by a judge. Whereas the entire grand jury proceedings are secret, only trial jury deliberations are secret. Criminal trials are open because the public has a constitutionally-grounded right to open criminal trials, and the Sixth Amendment ensures accused persons the right to a “speedy and public trial.” The trial jury decides whether a suspect is guilty “beyond a reasonable doubt,” and sometimes also decides on a penalty.

McCulloch’s decision to essentially conduct a jury trial in the guise of a grand jury robbed Michael Brown and his family of a voice. There was no one there to represent them, to look out for their interests, or to stand up for their rights. Unlike a jury trial, Michael Brown’s family had no attorney present to cross-examine witnesses, refute theories, and defend against character assassination.

McCulloch’s decision to “shift the truth-seeking function of a criminal trial into the secret realm of the grand jury room” violated the public’s right to an open criminal justice system. Where there is already significant distrust of the law enforcement and the justice system, such closed proceedings and the decisions that result from them only breed further distrust. As Lithwick writes:

We cannot believe in the fairness of a process we cannot see, and we should not be led to believe in the fairness of a process because a prosecutor’s office asserts that we have seen all we need to.

The grand jury proceedings became in effect a “closed trial.” Instead of an open criminal trial, we got a closed process, and a post-decision “document dump that raises more questions than it answers. In that context, McCulloch’s bizarre press conference could be understood as a kind of public ”closing argument.” It was an attempt to lend a false finality to the perverted process McCulloch guided to its inevitable outcome.

McCulloch’s “closing argument” was also the moment he finally morphed back into the role of prosecutor, leaving little doubt whom he was really prosecuting all along.

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