Why Bob McCulloch Did the Right Thing in Ferguson
Robert Tracinski
By

St. Louis County Prosecuting Attorney Robert McCulloch has come in for a lot of criticism for the way he brought the Ferguson police shooting to a grand jury.

The criticism is that he clearly did not want to get an indictment, which he presumably could have gotten if he wanted it. Instead of feeding the grand jury just enough one-sided evidence to get the indictment—which is considered to be the usual practice—he gave them all the evidence in the case and allowed them to question witnesses.

Oh, the horror. To give grand jurors all of the evidence instead of skewing it in your direction! Clearly an abuse of power.

If so, this is less a critique of McCulloch, really, than of the usual use of grand juries.

In the course of one of these odd critiques of McCulloch, Noah Feldman actually does a good job of describing the history of grand juries and their original function of preventing false or malicious prosecutions by making sure there was enough evidence to go forward. That the grand jury process has since largely been captured by prosecutors and turned into a rubber stamp may well be a problem. But it doesn’t mean that McCulloch was wrong to restore it to its original role.

The criticism that is perhaps more on target is that McCulloch never even should have taken the case to a grand jury. If he thought the evidence was so weak, why didn’t he make the decision not to prosecute and take the responsibility for it himself? In this view, it was “cowardly” to “hide behind” the grand jury.

I think this misses the point of why McCulloch did what he did, and why it was the best decision under the circumstances.

First, let’s be clear about what the grand jury documents reveal. The upshot is captured in this overview of the eye-witness testimony, such as it was, that was given in the case.

An Associated Press review of thousands of pages of grand jury documents reveals numerous examples of statements made during the shooting investigation that were inconsistent, fabricated or provably wrong…. Prosecutors exposed these inconsistencies before the jurors, which likely influenced their decision not to indict Wilson in Brown’s death.

You think? Here’s an example of what they found.

Another man, describing himself as a friend of Brown’s, told a federal investigator that he heard the first gunshot, looked out his window and saw an officer with a gun drawn and Brown “on his knees with his hands in the air.” He added: “I seen him shoot him in the head.” But when later pressed by the investigator, the friend said he had not seen the actual shooting because he was walking down the stairs at the time and instead had heard details from someone in the apartment complex. “What you are saying you saw isn’t forensically possible based on the evidence,” the investigator told the friend. Shortly after that, the friend asked if he could leave. “I ain’t feeling comfortable,” he said.

I’d feel pretty uncomfortable, too, if I just got caught lying to the FBI. Good thing for him that the case ended now, before he perjured himself in court.

These grand jury documents are a catalog of how the case against Darren Wilson totally fell apart. The forensic reports show Michael Brown’s blood inside Wilson’s car, and the autopsy shows that Brown received all of his wounds in the front—both of which are consistent with Darren Wilson’s version of the story, in which Brown was the aggressor. This doesn’t mean that every little detail of Wilson’s testimony is correct, simply that his overall story is not contradicted by the objective, physical evidence. So what remained of the case against him? All that there ever really was from the beginning: incendiary eyewitness accounts of Wilson shooting Brown in cold blood while Brown had his hands up, attempting to surrender. It is these eyewitness accounts that turned out to be a giant pile of lies.

Now put yourself in the prosecutor’s shoes. You have a case in which the only evidence against the accused is discredited, and you know it’s going to be discredited. So to take Wilson to trial would not just be unjust to Wilson. It would be prosecutorial misconduct. A prosecutor can get in a lot of trouble for trying to take a case to court based on evidence he knows to be unreliable. Ask Mike Nifong.

So what is McCulloch supposed to do? He could declare that he isn’t even going to take this case to the grand jury. But that wouldn’t create the kind of paper trail that we can all pore over, as we are doing right now, to determine whether there was a case or not. Sure, there would be forensic reports and police interviews. But these would be easier for people to dismiss as self-serving lies told by the cops. Instead, taking the case to the grand jury and giving them everything was a good way for McCulloch to approximate the kind of presentation of evidence that would happen in a trial and to have it all available as a matter of public record through a semi-independent process.

McCulloch must have known that he wasn’t going to win this one. No matter what he did, the rioters were going to riot, because they had already made up their minds and had their own, pre-existing ideological motivations. He was trying to choose the least bad option. In that respect, simply declaring he wouldn’t pursue the case would make it seem too much like a unilateral police cover-up. (McCulloch comes from a family of cops and has been accused in the past of being too reluctant to prosecute officers.) So using the grand jury process to introduce all of the evidence was the best option left. It wouldn’t stop the rioters, but at least it would help get all of the facts out.

But if a refusal to indict was the outcome McCulloch wanted, or knew to be inevitable, then shouldn’t he have taken responsibility for it? As Noah Feldman argues: “Prosecutorial discretion is an enormous power…. To trust prosecutors with this judgment, we need to see them owning the decisions they make.”

But this case is not about Bob McCulloch. Making the decision unilaterally would have made the controversy about him—and not about the evidence. McCulloch’s job was not to show how brave and decisive he is. His job was to produce the most credible result possible. For that purpose, spreading out the responsibility for the decision helps give it more weight. It’s not just his decision, it’s the decision of a whole jury. And spreading it to anonymous grand jurors—who are a little more difficult to vilify in the press—made the decision less about the personalities of the people involved and more about the actual evidence. It leads the rest of us to ask: what did the grand jurors hear that made them reach this conclusion?

At least, that’s what it does for those of us who are willing to ask questions, as opposed to those whose minds were made up in the five minutes after the first inflammatory claims were reported. These are the people who are still going around chanting, “Hands up, don’t shoot.” And when you point out that there is no evidence behind that slogan, they reply that they don’t care because it’s “just a metaphor.” That sums up the real problem in this case: the number of people for whom this shooting is not a fact but a metaphor.

Nothing can be done with those people but to point out their folly. For the rest of us, Bob McCulloch made the best of a difficult decision.

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