On Tuesday, November 25, a grand jury decided not to indict Darren Wilson, the white police officer who fatally shot Michael Brown, a black, unarmed teenager in Ferguson, Missouri on August 9 of this year. In the months between the shooting and the decision, there has been non-stop action: protests and marches have been endless, voter registration in Ferguson has surged, and politicians on every level have offered their opinion on the issue.[1]
In anticipation of the ruling on Tuesday, President Barack Obama urged the people of Ferguson not to resort to violent acts, telling protesters, “I have no sympathy at all for destroying your own communities,” while also praising those in other parts of the country for protesting peacefully. Attorney General Eric Holder expressed his disappointment regarding the unrest and made it clear that acts of violence would not be condoned. Missouri Governor Jay Nixon called up hundreds of National Guard troops in preparation for any violence as a result of the grand jury’s decision.[2]
The grand jury’s ruling has since reinvigorated conversations not only about race relations in the United States, but also about contributions by U.S. leaders to the huge problem of how we as a country deal with our past and present violations of people’s civil rights, as well as the training police officers receive to deal with people, particularly young men, of color. Amid all of these important and necessary conversations, however, lies another question: how was the grand jury in Ferguson different than other grand juries?
In 1992, in the U.S. Supreme Court case of United States v. Williams, Justice Antonin Scalia explained that the role of a grand jury is not to “enquire…upon what foundation [the charge may be] denied,” but only to examine “upon what foundation [the charge] is made”: “neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.”[3]
The difference between that explanation by Justice Scalia and what happened in Ferguson is stark. Officer Wilson was allowed to testify for hours, and Prosecutor Bob McCulloch presented the grand jury with every piece of exculpatory evidence that was available at the time.[4] McCulloch gave a press conference on Tuesday, in which he included an apology to the Brown family and a relatively scathing jab at the media before explaining that the grand jury decided not to indict Wilson because of the evidence presented during the hearing.[5] According to precedent and Justice Scalia’s explanation of what a grand jury is and is not, however, McCulloch was not required to present such evidence and was certainly not required to allow Wilson to testify.
Many legal scholars and experts have criticized McCulloch’s approach and have tried to offer explanations.[6]Some posit that his misuse of the grand jury as a trial jury and his presentation of Wilson’s case in a way that would ensure that he would not be indicted were tactics employed by McCulloh solely to get the verdict he wanted. Others argue that he simply wanted to appease the media by including all information available.[7] Andrew Leipold, director of the Program in Criminal Law and Procedure at the University of Illinois College of Law, says that McCulloch’s fear of being one-sided in his treatment of the process was what most heavily influenced his approach: “This is an example of the prosecutor saying…no matter what the outcome is, if we don’t present witness X or present the forensic reports, people are just going to say this is an inadequate investigation and either we’re railroading the police officer if we indict or we’re covering up if we don’t.”[8]
There are still others who believe strongly that the outcome would have been different had Wilson not been a police officer.[9] Aside from the obvious fact that his job as police officer makes the shooting more complex, the public’s view of people in uniform is such that it is much harder for a jury to definitively convict a young police officer than just a random person on the street. Self-defense is much easier to argue when your job is by nature very dangerous.[10]
However, the issue at hand is not why McCulloch chose to allow Wilson to testify or why he presented so much evidence to the grand jury. The issue is that this grand jury was given more and different information than other grand juries in the United States. Whether that fact is right or wrong in the circumstances of the case is up for debate and the decision will certainly not be the final word in such a complex, important, and symbolic case as this.
Since the ruling, feelings of anger, desperation, and frustration have only increased for the people of Ferguson and Governor Nixon has already rejected appeals to have another ruling. The issue of the grand jury will surely become a more prominent one as weeks go by, and will rightly contribute to the conversation of race relations in America as the story of Ferguson continues to unfold.
[1] Juan Williams, “Ferguson grand jury decision: Brown’s death should be call to action not violence,” Fox News, November 25, 2014, Web.
[2] Dashiell Bennett and Russell Berman, “No Indictment,” The Atlantic, November 25, 2014, Web.
[3] United States v. Williams, 504 U.S. 36, 52 (1992).
[4] Kira Lerner and Alice Ollstein, “Experts Blast Ferguson Prosecutor’s Press Conference, Legal Strategy,” Think Progress, November 25, 2014, Web.
[5] Emily Badger, “The empty logic of the Ferguson prosecutor’s meandering press conference,” The Washington Post, November 25, 2014, Web.
[6] Richard A. Oppel, Jr. and Michael Schwirtz, “Experts Weigh Officer’s Decisions Leading to Fatal Shooting of Michael Brown,” The New York Times, November 26, 2014, Web.
[7] Kira Lerner and Alice Ollstein, “Experts Blast Ferguson Prosecutor’s Press Conference, Legal Strategy,” Think Progress, November 25, 2014, Web.
[8] Ibid.
[9] Krishnadev Calamur and Eyder Peralta, “Ferguson Documents: How the Grand Jury Reached a Decision,” NPR: The Two-Way, November 25, 2014, Web; Emanuella Grinberg, “Ferguson decision: What witnesses told the grand jury,” CNNJustice, November 26, 2014, Web.
[10] Ibid.