A St. Louis County grand jury chose not to indict Officer Darren Wilson for the shooting death of St. Louis teen Michael Brown. After nearly three months, the grand jury comprised of seven men and five women, nine white and three black heard evidence from 60 witnesses and met 25 times. St. Louis County Prosecuting Attorney William P. McCulloch cited inconsistent witness testimony, thereby making it difficult to present a clear picture of what occurred in the 90-second confrontation between Officer Wilson and Mr. Brown. The grand jury considered charges ranging from first-degree murder to involuntary manslaughter, all before failing to find that probable cause was established to return a true bill of indictment to charge Officer Wilson.
To lead in, any loss of life is tragic. No one wins in this situation. A young man lost his life, his parents lost a son, and a police officer has possibly lost a career and will have to live with the fact that he had to use lethal force while on the job. In this case, at least from what was visible, due process was performed and the grand jury failed to return a true bill of indictment after having been presented with a considerable amount of evidence over a very long period of time. Article I, Section 16 of Missouri’s Constitution requires that 9 of 12 members on a grand jury find that there is probable cause that a crime has been committed in order to return a true bill of indictment.
Unlike a standard jury trial, a grand jury is performed without the presence of a criminal defense attorney and the proceeding is not open as a standard trial is. Using the Federal Rules of Criminal Procedure (“FRCP”) as a guide can better explain how a typical grand jury system works. Though there is no enumerated quorum for a grand jury to convene, FRCP 6(a)(1) requires between 16 and 23 members of a grand jury in order for the grand jury proceeding to move forward. In a grand jury proceeding a Prosecutor will call witnesses and present evidence before the panel in an effort to prove by a probable cause standard (more probable than not) that a crime has been committed. Unlike a jury trial, these proceedings are conducted in secret with the only individuals present being government attorneys, the witness being questioned, a court reporter, and possibly a translator. FRCP 6(d)(1). There is no defense attorney to represent the accused’s interest or to make timely objections to otherwise inadmissible evidence. For instance, it is proper to present hearsay evidence to a grand jury. United States v. Calandra, 414 U.S. 338 (1974). Of course the hope is that the Prosecutor is ethical enough to vet the garbage hearsay from that that is most assuredly reliable, if there is such a thing as reliable hearsay. Once all evidence has been presented, the grand jury retires to a deliberation room, much like a jury would in a jury trial, to determine whether enough of them believe probable cause has been established. In Missouri, had 9 of 12, or 75% of them believed probable cause was established, they would have returned a true bill of indictment. In the Federal system 12 jurors must believe probable cause is present to return a true bill of indictment. FRCP 6(f). If an indictment is issued it will likely be under seal until the defendant can be brought in to custody.
Now that we know the nuts and bolts of it, why didn’t an indictment result? The legal standard to meet is very low. In fact, it’s the same to make an arrest, which is a long way from the infamous beyond a reasonable doubt standard. Could the jury has thought they were to find the actual guilt or innocence of Officer Wilson rather than simply the determination of whether probable cause exists to bring charges? Maybe too much was presented by a Prosecutor who didn’t really want the true bill? Generally grand jury proceedings are an exercise in efficiency and are quite compact. A Prosecutor gets their best evidence to make a quick pitch to the grand jury and as a general rule, they get the indictment they are seeking. Officer Wilson’s grand jury was reviewing evidence for somewhere around 3 months. This timeframe is the exception and not the rule. Some criminal attorneys and those in the Brown camp may suspect the excess evidence was injected in a deliberate fashion to frustrate the chances of the indictment. Others will say the Prosecutor was being thorough. No one really knows.
Unlike trial jurors this grand jury wasn’t sequestered away from the outside world and the media that pumps crap into the atmosphere. There were reports that one juror asked an assistant prosecutor about information learned from a media source and not presented to date, by the Prosecutor. Perhaps outside influences swayed the mind of the grand jurors. It certainly seemed like the media tilted like a tree in the wind on this case and on any given day after new evidence, reliable or not, was discovered the talking heads down at Fox and Friends and the CNN Newsroom were weighing in with their infinite wisdom. Then again, witness inconsistencies with each other and medical evidence presented would not have helped the cause either. As a Tampa criminal attorney I’ve always felt that medical testimony, if available, can often be the determining factor in cases. If the grand jury heard testimony from doctors performing autopsies and evaluating Officer Wilson that could theoretically make impossible an eyewitness account, that witness and his or her testimony may have been thrown on the scrap heap.
All of this said, it is quite possible the grand jury did their job and rendered the right decision. At the end of the day I’m not sure if justice has been served. It’s conceivable either way I guess. This could be far from over as it could be possible for St. Louis County to empanel another grand jury to review this evidence. That said, the Feds could take a peek at it given that Attorney General Holder claimed that the Department of Justice would review potential “violations of federal, criminal civil rights statutes.” Should neither of these avenues be pursued (I doubt they will) the Brown family will likely file a civil action against both Officer Wilson and the Ferguson Police Department.
It’s always a tragedy when a life is lost, especially under circumstances like this. Our grand jury system isn’t without flaw, but it is the best in the world. Though indictments are often returned, the process is actually in place to offer an added layer of protection for the accused. Perhaps it worked in this instance, perhaps it didn’t.