Well, I hate to say it, but you could see this one coming from a mile away. Ferguson police officer Darren Wilson was not indicted for the August 9 shooting of Michael Brown.
I don’t know if he should have been indicted. I do know that this is a sad case all around. Let’s begin by reminding ourselves what a grand jury is and why it’s needed in a case like this. Historically, a criminal grand jury is considered to be a brake on the power of the prosecutor. The Fifth Amendment to the United States Constitution, part of the “Bill of Rights,” established that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” A grand jury is “grand” because it consists of at least 23 members, unlike the 12 required for criminal trials or the six generally required for civil trials.
The grand jury has to return a “true bill” in which it indicates its belief that there is probable cause to believe that a crime was committed. During grand jury proceedings, the defendant is not present, and no one makes a presentation on behalf of the defendant. One only hears from the prosecutor. If the prosecutor doesn’t have enough evidence to prove that there is probable cause to believe that a crime was committed, then one never has to hear from the defendant because there is no way that the case could be proved beyond a reasonable doubt. End of story.
One of the criticisms of grand juries is that they generally operate as a “rubber stamp” to prosecutor’s decisions. It is very rare that a grand jury does not indict; the notable exceptions are generally cases with a high political profile, such as this one in Ferguson Missouri. The St. Louis County prosecutor, Robert McCulloch, is suspected by his critics of not being unbiased when it comes to matters related the conduct of officers. His father was a police officer killed in an incident with an African-American suspect, and his mother, brother, uncle, and cousin all served with the St. Louis Police Department. He also did not ask the Grand Jury to endorse a specific charge, but chose instead to present all the evidence to the grand jury, leaving to jurors the decision of what charges might be brought, if any.
There are also very substantial legal impediments to indicting a cop in the performance of his or her duty. First, cops have a “qualified” immunity from liability. For the same reason that you cannot sue a judge for making a bad decision, you cannot sue a cop for making a mistake in judgment. In addition, the legal standard authorizing deadly force by police officers is something called “objective reasonableness.” In the 1985 case of Tennessee v. Garner, 471 U.S. 1, the Supreme Court held that when a law enforcement officer is pursuing a fleeing suspect, he or she may use deadly force to prevent escape only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Officer Darren Wilson, who shot and killed Michael Brown, claimed that he was justified in his use of deadly force. According to Wilson’s narrative, Brown and his friend Dorian Johnson were walking down the middle of the street when Wilson drove up and ordered them to move to the sidewalk. Brown and Wilson struggled through the window of the police vehicle until Wilson’s gun was fired, either intentionally or as a result of the struggle. Brown and Johnson then fled in different directions, with Wilson in pursuit of Brown, which is when he shot him six times. The suggestion has also been made that Wilson was pursuing Brown because he thought he might be have been involved in a store robbery. The Ferguson Police Department was in possession of a video of a convenience store robbery that occurred only minutes before the shooting. It showed Brown taking cigarillos and shoving a store employee who tried to prevent him from leaving. Wilson knew about the robbery at the time of the shooting.
An additional barrier to the prosecution of police officers comes from the close cooperation that police departments have with the district attorney’s offices that prosecute crime. Aside from the strong bonds that have been built up through working together over time, prosecutors must also rely on the cooperation of police departments when they are investigating police malfeasance. It’s an inherent conflict of interest.
This particular grand jury in Ferguson apparently only had twelve members. Must be the way it works in Missouri. Nine of them were white, three of them were black. They failed to indict Officer Wilson on anything. I wasn’t in the grand jury room, I don’t know what evidence was presented of what wasn’t presented. All I know is that you could see this decision coming from a mile away.