No one was really surprised that Prosecuting Attorney Robert McCulloch failed to get a St. Louis County grand jury to indict Darren Wilson, the Ferguson, Mo., police officer who shot and killed 18-year-old Michael Brown on Aug. 9. It is rare that police officers are held accountable for the murders of Black and Brown youth.
What is stunning, however, was how much McCulloch twisted this legal process to shield the officer from indictment. To start, McCulloch never sought to charge Wilson. Civil rights attorney Benjamin Crump, who represents Brown’s family, expressed shock at the way McCulloch handled the case, noting, “The system needs to be indicted … over and over again it exonerates police officers for killing young people of color.” (Today.com, Nov. 25)
McCulloch violated so many court precedents, including allowing Wilson, a potential defendant, to testify for hours with no cross-examination and presenting every scrap of exculpatory evidence available, that even conservative Supreme Court Judge Antonin Scalia noted that never in the history of England or the U.S. has a grand jury allotted such rights to a suspect.
What Scalia won’t say — but every worker or oppressed person ever dragged before a grand jury knows — is that these extrajudicial bodies were created to establish grounds to indict potential defendants, not to let them off the hook. Apparently in his zealous efforts to make sure Wilson walked, McCulloch forgot this.
In 2010, the most recent year for which data was kept, U.S. attorneys prosecuted 162,000 federal cases before grand juries with indictments in all but 11. Although this was a local and not a federal court, it is extremely rare for prosecutors not to win an indictment, according to the Bureau of Justice Statistics. The exceptions appear to involve cases of police shooting unarmed suspects.
McCulloch’s role before the grand jury was more that of Wilson’s defense attorney than a state prosecutor. Prosecutors coached Wilson’s testimony with a heavy emphasis on why he perceived Brown as a “threat.” At one point they prompted Wilson, “You felt like your life was in jeopardy, and use of deadly force was justified at that point in your opinion?”
At the same time, McCulloch challenged witnesses who disagreed with Wilson’s version of the events. Prosecutors never mentioned that Brown was unarmed when he was killed. The grand jury proceedings offered no opportunity for Brown’s family’s interests to be heard. Unlike a regular jury trial there was no opportunity for an opposing view to be aired.
McCulloch is basically a cop in a three-piece suit. He grew up in a family full of cops — his father, mother, brother, uncle and cousins all worked for the St. Louis Police Department. McCulloch wanted to be a cop but after losing a leg to cancer, opted for being a county prosecutor as “the next best thing.” (New York Post, Nov. 25)
To make sure Wilson wasn’t indicted, McCulloch did more than serve as the chief “prosecuting attorney.” As president of The BackStoppers Inc., he promoted sales of a shirt proclaiming “I SUPPORT OFFICER D. WILSON,” with proceeds going to a fund set up for Darren Wilson.
Even before his involvement with the investigation into Michael Brown’s death, McCulloch had a reputation for declining to prosecute cops. Brown’s family had objected to McCulloch’s decision not to appoint a special prosecutor, and 7,000 people in the Ferguson area signed a petition for McCulloch to recuse himself. It appears their concerns were justified.
Numerous demonstrations were held in front of McCullough’s office in Clayton, Mo., starting in August and demanding that a special prosecutor take McCullough’s place. Gov. Jay Nixon refused to replace him.
Conspiracy to let Wilson off the hook
This grand jury has been fraught with questionable practices throughout the entire process. Even before the verdict was announced on Nov. 24, leaks of selective information that served to support Wilson and vilify Brown were fed to the media.
McCulloch wasn’t the only officer of the court to make sure the grand jury would find in Wilson’s favor. Assistant Prosecutor Kathi Alizadeh helped out by giving erroneous instructions to the jury regarding state statutes concerning a police officer’s legal “rights to shoot a fleeing suspect.”
On Sept. 16, Alizadeh gave the grand jury a copy of Missouri statute 563.046 — the state’s use of force doctrine that permitted police to shoot any suspect who was simply fleeing the scene. Alizadeh did not tell the jury that this 1979 statute was ruled unconstitutional by the U.S. Supreme Court in 1985 in a Tennessee case involving a 15-year-old shot in the back of the head by a cop as he attempted to flee after a robbery.
The Supreme Court’s ruling meant that police could not legally kill someone who was attempting to escape. The officer had to know that the suspect posed a dangerous threat or had committed a violent felony. Neither was true in the case of Michael Brown, despite media attempts to paint a different scenario.
It wasn’t until Nov. 21 that Alizadeh tried to cover herself by instructing the jury not to necessarily rely on her earlier instructions and to totally ignore a portion of the statute because it did not comply with U.S. Supreme Court cases. However Alizadeh never explained what portion was inaccurate. When asked by a jurist if federal court rulings override Missouri statutes, instead of simply saying “Yes,” she replied, “As far as you need to know, just don’t worry about that.” (Rawstory.com, Nov. 27)
While the public has responded with outrage to McCulloch’s treachery, which resulted in the grand jury not indicting Wilson, it is important to note that under Missouri law the grand jury is limited to investigating and making recommendations. It does not have the final say. Wilson could and should still be prosecuted for the murder of Michael Brown.
However, the fight against racist police brutality can’t rely on the capitalists’ courts to do the right thing. The fact that almost 3 million people fill U.S. prisons is proof of this. The fight must be taken to the streets and the demand must be to indict the whole rotten system.