Darren Wilson's grand jury: too much evidence, too little supervision

The grand jury's decision not to indict Ferguson, MO, police officer Darren Wilson for the killing of unarmed teen Michael Brown inspired protest across the country Monday night. Though the outcome was dismaying to many, it really wasn't a surprise. This is because of the way the prosecution structured the grand jury: there was a deliberate attempt to stuff the grand jury full of as much information as it could handle. And that the grand jury wouldn't charge Wilson with a crime was a totally predictable consequence. Here's why.

1. The sheer scale

The reason that most grand juries don't go very long, as Vox's Amanda Taub has written, is they’re typically only looking at a selection of the evidence that’s been cherry-picked by the prosecutor. In the Ferguson case, however, St. Louis County Attorney Robert McCulloch’s office deliberately presented the grand jury with as much evidence as they could possibly find. The result? 25 meetings of the grand jury over more than three months, considering 24 written reports, at least 30 recorded interviews with at least 24 different witnesses, and interviews of several witnesses in the grand jury room itself. The panel’s transcripts — which were released Monday night after the grand jury's decision was announced — come out to over 4,700 pages.

Not all of that relates to what happened between Michael Brown and Darren Wilson on August 9th, however. The grand jury was told about everything from the process for forensic testing of marijuana, to a prior incident where Darren Wilson had apparently been set up by a carjacker on a use-of-force complaint.

the grand jury was told about an earlier bogus use-of-force complaint against wilson

That made the process of determining whether or not to charge Darren Wilson with a crime for killing Michael Brown much more like a full jury trial, where jurors have to wade through evidence and adjudicate what’s right and what’s wrong. Paradoxically, by being flooded with evidence about Darren Wilson and Michael Brown, jurors may have found themselves seeking a higher standard for what counted as "enough" evidence for an indictment.

2. The media leaks

On October 23rd — during the grand jury’s 15th meeting — a juror said to one of the assistant prosecutors, "Some of these media reports, they’re saying [Brown] had marijuana in his system." That report came from the St. Louis Post-Dispatch, which had leaked a copy of the official autopsy report. The grand jury hadn’t seen the information until they read it in the paper.

Unlike full juries, which are sequestered from the outside world (including the media) during their deliberations, grand juries remain connected to the outside world. So the grand jurors in Ferguson were able to follow the story of the case they were considering, for the entire three-plus months they were considering it. This meant that their understanding of the case wasn’t just shaped by information that hadn’t been formally presented to them yet — like the autopsy leak — but information that wasn’t formally presented to them at all, or, possibly, information that wasn’t even true.

an assistant prosecutor encouraged jurors to bring in outside information

When announcing the results of the grand jury on Monday, McCulloch blamed the media, particularly social media, for skewing opinion about the case. But the grand jurors and prosecutors didn't mind when witnesses found out about leaks. A few days after the grand juror asked about the autopsy results, the jury heard from an eyewitness who'd already spoken to the FBI. But the assistant prosecutor greeted him by saying that the witness had told the FBI "a bunch of lies" — something to which the witness himself more or less agreed. It turned out that since speaking to the FBI, he'd read about the autopsy in the papers — and it had "clarified" his own memories of Brown's death.

Furthermore, on November 13th, an assistant prosecutor actually encouraged the jurors to bring in any outside information they thought would be helpful:

I know that typically we tell jurors not to do any research on the case, but if there is a clip that you all think that you want the rest of the jurors to view, if you can just bring it to my attention, I can give you my email address and you can email me the link or something and I'll make sure I get it copied so we can show it to everybody.

3. Facts vs. interpretations

Obviously, with 24 witnesses — one of whom was Wilson himself — some testimonies were bound to contradict each other. And McCulloch's statement on Monday implied that vast chunks of witness testimony were simply disproved by the autopsy:

Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made, and also conflicted with the physical evidence. Some were completely refuted by the physical evidence.

But the simple narrative presented by McCulloch doesn’t really appear to reflect the way the grand jury thought about it themselves.

The assistant prosecutors attempted to run the grand jury by presenting witness testimony first, and forensic testimony second. (Their rationale was that they’d lose their access to eyewitnesses more quickly than they would to experts.) That’s why the grand jury hadn’t heard about the autopsy before it was leaked to the St. Louis Post-Dispatch — although as the autopsy leak showed, the prosecutors’ strategy was only partly successful in getting jurors to consider evidence in a systematic way.

A medical examiner and Michael Brown's family present a second autopsy done on Brown's body. (Joe Raedle / Getty Images News)

But even the forensic evidence was presented by actual people — and those people brought along their own interpretations of the facts, or others’ interpretations, to sketch out stories of what could have happened. The doctor who examined Darren Wilson was willing to repeat that Wilson had told him he’d been punched, even though it would have been impossible to work backward from Wilson’s bruises and prove a punch had occurred. And when the grand jury finally heard about not just one, but three autopsies — the ones conducted by St. Louis County, the FBI, and an independent autopsy commissioned by Michael Brown’s family — they couldn’t figure out the differences between them (even though press reports were sharply different). The answer, said the independent autopsy analyst, was that with the same facts they’d come to different interpretations.

4. Witness inconsistencies

During his press conference, McCulloch implied that some witnesses had discredited themselves by contradicting their own testimony — and certainly some did, like the witness who recanted a lot of his testimony after reading the autopsy report. But there are other ways for witnesses to be inconsistent — like mentioning details in a second interview that they didn’t give in the first.

"you tend to remember more through a couple sleep cycles" — darren wilson

When Darren Wilson came before the grand jury, it had been five weeks since his initial interview with a St. Louis County police investigator. Wilson’s grand-jury testimony (which stretched for four hours) included plenty of details he hadn’t mentioned in the first interview — such as Wilson telling Brown to "get the fuck back" instead of "stop, get back," or saying it looked like Brown got even stronger once Wilson started shooting: "bulking up to run through [Wilson's] shots."

When an assistant prosecutor asked Wilson if there might be things he told the grand jury now that he didn’t say initially, Wilson said it was because he remembered the traumatic encounter with Brown better, weeks later, than he did the day after Brown’s death:

Yeah, just from what I have been told about the incident originally, is that you are supposed to have 72 hours before you are actually officially interviewed, recorded statement and all of that. You tend to remember more through a couple sleep cycles then what you do as soon as it happens. It is a traumatic event, a lot of details kind of come as one detail.

Is that really how eyewitness testimony works? No. But for the grand jurors, it was just another shifting set of facts to keep track of.

5. Did the grand jury think its job was to figure out the truth?

What was the grand jury supposed to do with all of these mountains of often-contradictory evidence? According to the law, its job was to determine whether there was enough evidence to charge Darren Wilson with a crime for Michael Brown's death: to find if there was probable cause that Wilson had killed Brown (which wasn't in dispute), and probable cause that he didn't have a reasonable belief that his life was in danger or that Brown was fleeing a violent felony (which was in dispute).

But, as mentioned, the amount of evidence presented by the prosecutors seemed much more like a proper jury trial — where the jury's job is to determine what really happened and who is really to blame. On October 16th, a grand juror told a witness, "I think part of the responsibility is to find the truth in all this." It's a message they picked up from prosecutors — a few days earlier, assistant prosecutors were telling witnesses (in front of the grand jury) that jurors would ultimately "try to figure out what really happened as best as we can, without having been there ourselves."

It's a little strange that prosecutors would characterize the grand jury as "we," given that they weren't actually joining it in deliberations — and given that they, as they admitted as the investigation ended, had tried to go out of their way to present balanced evidence rather than helping the grand jury make sense of it all.

Police want to be able to use impact weapons on resistant civilians. (Quinn Dombrowski)

When the prosecutors finally issued instructions to the grand jury, they tried to draw a distinction between what the grand jury needed to do now and what the prosecution would have to do if the case went to trial. But the explanation was extremely confusing, and it used the word "we" — which prosecutors had used to include the jurors earlier in the process — to try to distinguish the prosecution's role from the grand jury's.

And the one thing that Sheila has explained as far as what you must find and as she said, it is kind of in Missouri it is kind of, the State has to prove in a criminal trial, the State has to prove that the person did not act in lawful self-defense or did not use lawful force in making, it is kind of like we have to prove the negative.

So in this case because we are talking about probable cause, as we've discussed, you must find probable cause to believe that he committed the offense that you're considering and you must find probable cause to believe that he did not act in lawful self-defense. Not that he did, but that he did not and that you find probable cause to believe that he did not use lawful force in making the arrest.

It's very easy to imagine a juror coming away from this thinking there's something she, and the grand jury, are supposed to "prove" — and that after all these months, she just doesn't have the evidence to do it.

CORRECTION: This article originally said that August 20th to November 24th was a "four-month" time span. The author apologizes profusely for having lost the ability to count when she was up all night reading transcripts.

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