In the wake of the killing of Michael Brown by Darren Wilson, a Ferguson, Missouri, police officer, the public is taking a hard look at some of the systemic issues that can lead a white cop to kill an unarmed black teenager and not be charged with a crime.
Brown's family is lobbying for "Michael Brown laws" that would require police to record interactions with civilians. Others, like my colleague Amanda Taub, are calling for legislators to rethink the laws that let police officers shoot anyone they "reasonably believe" poses a threat, or anyone fleeing a violent felony. As Taub put it, "the real scandal of police violence in Ferguson is what's legal."
It's important to think about the ways that current laws and policies made this outcome possible, but these are not the only factors that made this outcome possible. I've seen some arguments along the lines of "the prosecutor's office wasn't the problem" and "if you really want to make change, support 'Michael Brown laws.'" These sorts of statements imply that everyone involved in the prosecution of Wilson did their jobs perfectly and the sole barrier to an indictment was a bad legal standard or the lack of video evidence.
Even if the prosecution of Wilson had gone perfectly, with everyone adhering to their roles in the justice system and being maximally fair, it's entirely possible that Wilson would not have been indicted. But we'll never know — because the prosecution didn't go perfectly at all. Even within the confines of its obvious flaws, the system didn't work like it was supposed to in Wilson's case. Not by a long shot.
What the prosecutor's office did wrong
The fundamental problem with the Wilson grand jury investigation was that jurors were given far more evidence than is typical and asked to do far more with it. That makes it easy for the prosecutor's office to deflect accusations of misconduct: they were just giving the grand jury all the facts.
And while a good grand jury investigation could have given grand jurors all the facts, it wouldn't have done it in the way St. Louis County prosecutor Robert McCulloch's team did.
- In a proper grand-jury hearing, the grand jury is told from the outset that their job is not to try to determine the truth, once and for all, of what happened. That's what a subsequent trial is for. But the prosecutors told Darren Wilson's grand jury that was exactly what they were supposed to do — to "try to figure out what really happened," as one of McCulloch's assistants said during the grand jury hearings.
- Jurors should be told at the outset of the investigation that their job is to decide whether there was probable cause that a crime was committed — in the case of a police officer shooting, a grand jury would need to find probable cause that the officer did not "reasonably believe" that the victim posed a threat at the time of the shooting. Instead, as late as November 11 — nearly three months into the grand-jury process — St. Louis County prosecutors told grand jurors that they didn't know whether probable cause was the standard for evaluating Wilson's defense, or whether there was a standard more favorable to Wilson, like proving beyond a reasonable doubt that he hadn't had a reasonable belief of threat. (Jurors were told on November 21, the penultimate day of hearings, that probable cause was in fact the standard.) And their final instructions were muddied with phrases like "we have to prove a negative."
- In grand jury proceedings, it's not unheard of for jurors to be presented with evidence that would help the suspect's case (even though that's not typical). And grand jurors sometimes have to deal with media leaks. But, when this happens, it's commonplace for prosecutors to ask grand jurors to ignore the media if possible. Instead of doing this, — and even though McCulloch believed, as he said on Monday, that the media was spreading misinformation about the case — his team encouraged grand jurors to do outside research and share it with the rest of the jury.
- A grand jury doesn't have to cross-examine or closely question witnesses. And Darren Wilson's grand jury didn't do that. But a fair prosecutor would have been honest about that when presenting the grand jury's findings to the press. Instead, McCulloch's statement on Monday implied that the grand jury had rigorously questioned all witnesses, and tried to square their accounts with each other when they testified — and that the grand jury's analysis had led them to conclude that some witnesses were, in McCulloch's words, "making it up."
The power of prosecutors
Prosecutors generally don't want to prosecute police: as civil rights lawyer David Rudovsky told Vox, "It's like one of their own." And McCulloch's handling of the case suggests that he was not not thrilled about the prospect of prosecuting Wilson.
Even though the system was already stacked in Wilson's favor, the St. Louis County prosecutor's office took what seems like deliberate action to make it more likely Wilson would not be indicted: overwhelming the grand jury with evidence, allowing Wilson to testify, focusing on Brown's marijuana use and speculating groundlessly that Brown "waxed" marijuana. The prosecutor's office made a big show for the public of presenting all the evidence, as a way to deflect public outrage. But it wasn't nearly as careful inside the grand jury room about communicating the legal standards.
Systemic biases exist beyond individual people or their actions. But the day-to-day functioning of these systems happen through people whose actions express and advance systemic problems.
That's especially true of prosecutors, who have enormous power in the criminal-justice system. Prosecutors get to decide who gets charged (and usually, who gets punished) for committing crimes. So trying to change the law without looking at problems in how prosecutors' offices are working, is doomed from the start.
Fixing the system is bigger than fixing the law — it's also fixing the culture. And fixing the culture requires calling out misconduct when it happens. And there is substantial evidence that misconduct happened here. As criminal defense lawyer and legal blogger Scott Greenfield wrote in a post called 'The Ferguson Lie," "we were played."
Maybe a "Michael Brown" law could have been in place in Missouri, and Exhibit A in the grand jury records would have been Darren Wilson's bodycam footage of his encounter with Michael Brown (assuming the camera hadn't "malfunctioned" or been accidentally turned off, or the footage hadn't gotten "lost", as often happens). The prosecutors could have still miscommunicated to or misled the jury. It's totally possible and even likely that Wilson still wouldn't have been indicted.
Even if the law had forced Wilson to meet a higher standard than "reasonable belief" that Brown posed a threat, prosecutors still could have kept the legal standards deliberately vague until the last minute — and thus influenced the questions jurors did and didn't ask.
When Vox's Amanda Taub argued that "the real scandal is what's legal," she didn't mean that this system worked as it was supposed to in Ferguson. It didn't. And it's possible to push for big, systemic changes, while acknowledging individuals screwed up.
CORRECTION: This article was initially unclear in explaining a pair of legal standards. Proving something "beyond a reasonable doubt" is a higher standard than "probable cause." In the case of Wilson's defense, prosecutors were instructing the grand jury that it would have to be disproved to a particular standard, but as late as mid-November were not sure how certain jurors would have to be that it was untrue.