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Bill Blum

Still No Justice for Michael Brown

A police car is set on fire after the announcement of the grand jury decision Monday in Ferguson, Mo. Police fired tear gas into crowds and there were reports of looting and fires set in the vicinity. AP/Charlie Riedel
Bill Blum
Contributor
Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam ("Prejudicial Error," "The Last Appeal" and "The Face of Justice") and is a…
Bill Blum

And so it has come to pass, the decision from the St. Louis County, Mo., grand jury that we have long anticipated: City of Ferguson police officer Darren Wilson will not be indicted for the Aug. 9 killing of African-American teenager Michael Brown. The grand jury has concluded there is no probable cause under state law to move forward with a criminal prosecution.

Wilson, newly married to a fellow cop and rumored to be preparing his resignation from active duty, will walk free and be able to rebuild his life. Michael Brown, of course, has no life to rebuild.

Although the grand jury’s decision comes as no surprise, it remains painfully difficult to accept, despite the highly detailed 20-minute speech delivered by the county’s top prosecutor, Bob McCulloch, announcing and defending the decision Monday evening.

According to McCulloch, the grand jurors worked “tirelessly” to conduct “a full and fair” investigation of the facts, unaffected by distractions created by the press and social media. They examined all the physical evidence, considered all the witness testimony, took note of the internal inconsistencies in some of the testimony given by Brown partisans as well as the inconsistencies between such testimony and the physical evidence, he stated. “They put their hearts and souls into this process,” McCulloch said, answering one reporter’s question at the conclusion of his speech. But after two days of deliberation, McCulloch explained, the grand jurors concluded there was “no probable cause” to conclude that Wilson had committed either murder or manslaughter or any other criminal offense.

McCulloch added that his office would post online, “with some exceptions,” all the witness testimony the grand jury heard and all the exhibits it considered. He concluded his prepared remarks, expressing “hope” that the community at large could learn from Brown’s “tragic” death and begin to “heal the old wounds.”

In the coming days, as I and countless others pore over the evidence presented to the grand jury, I will be asking at least two basic questions:

1. What kind of evidentiary showing must be made to indict a police officer for homicide in St. Louis County?

As McCulloch slogged through his summary of the evidence, the probable cause standard that governs grand jury deliberations got lost in the shuffle. Probable cause, it must be emphasized, isn’t the same as proof beyond a reasonable doubt, the standard of certainty that must be met to convict in a criminal trial.

Probable cause means only that a reasonable ground exists, based on facts, that a suspect has committed an alleged offense. As such it is an extremely low bar, one of the most relaxed thresholds known to the American criminal justice system. That’s why, as I wrote in an earlier column about Michael Brown: “In felony trials in the federal courts—where grand juries are required under the Fifth Amendment unless waived by the defendant—the U.S. Attorney’s Office secures indictments at a rate of more than 99 percent.”

In St. Louis County, a little less than half of all felonies are presented to grand juries. The rest are presented in open court to judges at preliminary examinations, which are also governed by the probable cause standard. Still, as I also noted in my previous column, citing Dana Milbank of The Washington Post, there have been at least a dozen fatal police shootings in the county since 1991 when McCulloch took office, but not a single prosecution, not a single indictment.

The old adage that a grand jury would indict a ham sandwich is true most everywhere, except, apparently, for grand juries that take direction and advice from McCulloch, and the ham sandwich in the dock wears a blue uniform.

2. Exactly what old wounds does Bob McCulloch hope to heal?

McCulloch’s vague reference to the “old wounds” he hoped the grand jury’s investigation might heal was perhaps even more disturbing than his anemic discussion of probable cause. If Wilson fully complied with the law, what wounds in McCulloch’s estimation would Brown’s death mend or cure?

Was the county’s chief prosecutor referring to the racial profiling practiced by the nearly all-white Ferguson Police Department? Or was he thinking in larger, national terms of the disproportionate dangers black youth face of being shot to death by police officers, or the disgraceful fact that during their lives, one in three black men in the U.S. can expect to serve time in jail or prison?

As I listened to McCulloch, I had the sinking feeling that he was referring to none of the above, and that underlying his remarks was the same old subtext that black inner-city youth bring about their own destruction.

Maybe as I wade through the grand jury evidence online, I’ll come away with a kinder opinion of how this case has been handled. Listening to McCulloch’s speech, however, I have to say that I have no probable cause to believe that I will.

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