The one thing that kept going through my mind as the world waited and waited and waited for the grand jury decision in the case of State of Missouri vs. Darren Wilson was, “Man, I wish every defendant got the level of due process that guy’s getting.”
Because let me tell you, folks, if it had been Michael Brown’s case — or yours or mine, for that matter — in front of that grand jury, there wouldn’t have been weeks of waiting for a decision. The grand jury would have indicted and been home before lunch.
I’ve been in Superior Court when a grand jury is meeting more times than I can count. I’ve seen a couple of hundred cases at a time handed to them. And I’ve seen those cases come back within hours with every single blessed one of them marked “a true bill.” Many of those defendants that go to trial are either exonerated or found guilty of lesser charges by the full or “petit” jury.
No less a conservative jurist than Supreme Court Justice Antonin Scalia has explained the purpose of the grand jury as “not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. … That has always been so; and to make the assessment, it has always been thought sufficient to hear only the prosecutor’s side.”
A typical grand jury hears only what the prosecutor wants it to hear and routinely rubber-stamps whatever the DA asks for.
The way prosecutor Robert McCulloch presented the Wilson case to the grand jury, however, was, to say the least, extraordinary. Rather than present the evidence most favorable to the state and ask for a specific charge, as it’s usually done, McCulloch decided he’d present all the evidence, good and bad, to the grand jury, and let it decide.
Sounds great, huh? I agree. I’d love it if all grand juries were like that. But they’re not. Not for the likes of you and me. Instead of the usual procedure, McCulloch transformed the grand jury into a mini-trial of the matter — which his office then proceeded to deliberately lose for the state.
If you look at the transcripts, you see DAs vigorously cross-examining the witnesses who support what would have normally been the state’s case, while treating the supposed defendant with kid gloves and accepting his story at face value. (“If he had not grabbed the gun while he was hitting you in the face, would you still have used deadly force”?)
St. Louis County Assistant District Attorneys Kathy Alizadeh and Sheila Whirley, who examined Wilson, didn’t even bother to cross-examine him on the unlikely things in his testimony. Things like Wilson’s claim that Michael Brown hit him in the face — hard enough to make Wilson fear for his life — with his right hand, a hand Wilson claimed was still holding stolen cigarillos from a convenience store robbery, and yet didn’t break or damage any of those cigarillos. (Q: “Were there any broken cigarillos or anything in your car later?” A: “No.”)
Or the claim that Michael Brown was “reaching into his waistband” as he supposedly charged Wilson, even though, since he was unarmed, there was absolutely nothing to reach for. Or Wilson’s assertion that Brown ran 20-30 feet away from the police car before turning back and charging another 10 feet back toward Wilson, when Brown (as even McCulloch later admitted in his own press conference) died about 150 feet away from the car.
Any DA would have asked these questions — if he or she was trying even halfheartedly for an indictment.
Perhaps the most stunning thing the DA’s office did in throwing this case occurred on Sept. 16, shortly before Wilson testified. At that time, Alizadeh handed the jury a 1979 Missouri statute that says that an officer has the right to use deadly force if “immediately necessary to effect the arrest or prevent the escape from custody.” Alizadeh did not, however, mention that statutes like that had been found unconstitutional six years later by the U.S. Supreme Court.
The St. Louis County DA’s office threw that hearing. And it did so as clumsily as a novice WWE wrestler taking his first dive pursuant to that night’s script.
Darren Wilson may or may not be guilty of murdering Michael Brown. One thing is undeniable, however: He did not receive something that is supposed to be so fundamental a principle of our system that it’s carved into the front of the U.S. Supreme Court Building: “equal justice under law.”
Darren Wilson got breaks from the prosecution that no one else would have. And that is why people are in the streets.