Was the Ferguson grand jury rigged?

 Bruce A. Singal, The Daily Record Newswire

By the time Prosecuting Attorney Robert McCulloch first addressed the St. Louis County grand jury in the case involving Darren Wilson’s fatal shooting of Michael Brown, the jury had already sat weekly for nearly four months hearing more mundane cases.

“Obviously, it is going to be different from a lot of the other cases that you’ve heard ... during your term,” McCulloch told the jurors of their investigation of the Ferguson, Missouri, police officer.

McCulloch was right on target. The proceedings he led stood in stark contrast to the usual grand jury process, in which the prosecution presents a streamlined version of its case, asks the jury to return a specific indictment, and the jury obliges in rubber-stamp fashion.

But the grand jury investigation of Wilson was indeed different. The prosecutors presented the jury with every shred of voluminous evidence concerning the shooting. Rather than requesting a specific indictment, the prosecution offered five possible indictments, ranging from murder in the first degree to involuntary manslaughter in the second degree. And they did not advocate for any of them, leaving the unguided grand jury to its own devices.

The result: The grand jury voted “no” on each of the five indictments (meaning none of them garnered the necessary nine out of 12 total votes).

The refusal to indict a white police officer for fatally shooting an unarmed black teenager has led some to ask if the grand jury was rigged to achieve that result. But the dirty little secret (at least to most people who do not toil in the criminal justice system) is that virtually every grand jury vote — state and federal — is “rigged,” in that it procures the outcome the prosecutor seeks. Invariably that outcome is the specific indictment requested by the prosecutor.

But, here, the prosecutors trumpeted their neutrality and sought to demonstrate it by taking no position on any possible indictment. Their aura of neutrality, however, was belied by telltale signs of partisanship favoring Officer Wilson and encouraging a no bill vote on all charges.

The prosecutors’ examination of Wilson was friendly and gentle, emphasizing favorable points and refusing to challenge vulnerable ones. The instructions of law that the prosecutors gave to the grand jury primarily emphasized the two possible defenses available to Wilson and the need to negate them in order to indict.

And the prosecutors’ refusal to ask the grand jurors to indict Wilson on a specific charge — in contrast to their practice in scores of other cases over four months — could not help but signal to the overwhelmed grand jury that this case was indeed “different” from all the others they had heard and had voted to indict at the prosecutors’ request.

Let’s start with the prosecutors’ examination of Wilson, who took the rare step of choosing to testify before the grand jury with no immunity (and in the absence of his lawyer, who was barred from the grand jury room under Missouri law).

Ordinarily, a prosecutor is intent on getting an indictment. And that intent is reflected in aggressive cross examination of any potential defendant, not so much to influence the grand jury (which ordinarily needs no influencing), but to establish incriminating statements that can be used against the putative defendant at an anticipated trial following indictment.

But the principal prosecutor who examined Wilson treated him with kid gloves, more akin to his own lawyer gliding him through a direct examination. She was a kindly and genteel questioner who allowed Wilson to tell his story uninterrupted and conspicuously declined to challenge his eyebrow-raising claims about Brown’s instant and overt hostility.

Thus, Wilson told the grand jurors that Brown (who had just committed a theft at a variety store and presumably was not courting an unnecessary police encounter), reacted to Wilson’s polite request to walk on the sidewalk by saying, “Fuck what you have to say.” When he ignored Wilson’s request, and Wilson opened his car door and told him to “come here,” Brown said: “What the fuck are you going to do about it?” and slammed Wilson’s door shut. And when Brown reached into the car and grabbed for Wilson’s gun, Wilson drew the gun and quoted Brown as saying, “You’re too much of a pussy to shoot me.”

Each of those assertions was ripe for vigorous challenge. But no such challenge was made.

Nor did the prosecutor contest Wilson’s bizarre portrayals of Brown’s near superhuman persona. Wilson, who at 6-foot-4 and 210 pounds was still considerably lighter than Brown, grabbed Brown’s arm when it reached into his car and reported feeling “like a 5-year-old holding onto Hulk Hogan ... that’s just how big he felt and how small I felt … .”

While they struggled in Wilson’s car, Wilson observed that Brown “had the most intense and aggressive face ... it looks like a demon, that’s how angry he looked.” And when Wilson fired a round of shots at the approaching Brown, Brown “looked like he was almost bulking up to run through the shots … [a]nd looking straight through me, like I wasn’t even there.”

A prosecutor who was seeking an indictment — or at least a full and fair explication of the evidence for the grand jury — would have eagerly contested such incongruous descriptions. But the “neutrality” of McCulloch’s lieutenants resulted in a conspicuous coddling of Wilson. That coddling permitted Wilson to lay a graphic and unchallenged foundation of the danger he claimed Brown posed to him throughout the encounter.

Tellingly, the prosecutor used leading questions more often to emphasize or even introduce points that were helpful to Wilson, rather than to challenge suspect testimony. For example, she led Wilson into testimony emphasizing the dangerous nature of the area where the encounter took place:

Q. Were you pretty much on high alert being in that community by yourself, especially when Michael Brown said, “Fuck what you say,” I think he said?

A. Yes.

Q. You were on pretty high alert at that point knowing the vicinity and the area that you’re in?

A. Yes, that’s not an area where you can take anything lightly ... .

With prosecutors like that, who needs his own lawyer?

In addition to the kindly questioning of Wilson, the prosecutors delivered instructions on the law to the grand jury that were also skewed in Wilson’s favor, in two respects.

First, they were surprisingly skeletal on the elements of the offenses, barely touching on many of them. After three months of extensive testimony and voluminous exhibits, the jurors were instructed in a mere 12 pages of transcript, most of which failed to identify the elements of the five different potential crimes. That left them largely in the dark on what they had to find in order to indict.

Secondly, and most strikingly, what little detail the prosecutors did furnish verbally on the law was reserved for Wilson’s defenses. The prosecutors repeatedly instructed the jury that to indict, not only would it have to find probable cause that Wilson committed the (largely unidentified) elements of the various crimes charged, but it also had to find there was probable cause to negate both of his potential defenses.

The prosecutors instructed three times in four pages (once in response to a grand juror’s question) that, in order to negate those defenses, the jury also had to find probable cause that Wilson did not act in lawful self-defense and that he did not use lawful force in making an arrest. “And only if you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in ... the evidence.”

And so were the grand jurors left to deliberate. They had heard congenial, welcoming questioning of the main witness in the case, which depicted, unchallenged, the specter of a nearly deranged, unarmed Brown terrorizing a nearly helpless, albeit armed, Wilson. They entered deliberations with the repeated instructions of the prosecutors fresh in their mind that, to indict on anything, they had to negate both of Wilson’s available defenses. And what they did not hear — probably for their first time ever as veteran grand jurors — was a prosecutor asking them to indict on a specific charge.

Instead, they were left with five possible indictments, inadequate explanations on any of them, and the uncharacteristically agnostic prosecutors effectively telling them, “Good luck; go figure it out for yourselves.” Never before, it is fair to surmise, had this grand jury been asked to truly deliberate.

Under such circumstances, it is unsurprising, if not predictable, that the jurors would not indict. Had the prosecutors followed the ordinary practice and asked the jury to indict Wilson on a specified charge, it is nearly unthinkable that it would have rebuffed them.

So, was the Ferguson grand jury indeed “rigged?” Yes it was, in that it achieved the results the prosecutors desired. In that way, it was the same as any other grand jury. It’s just that these prosecutors preferred a different result than most.

Bruce A. Singal is chairman of the litigation department at Donoghue, Barrett & Singal in Boston. He is a former assistant U.S. attorney in Boston.