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Ferguson Protesters Want the Grand Jury to Deliver "Justice." Here Are Two Reasons They Might Not Get It.

Joe Raedle/Getty Images

The drama over the killing of Michael Brown is moving from the streets of Ferguson to a St. Louis County courtroom, where a grand jury is reportedly considering whether to indict Darren Wilson, the Ferguson officer who shot Brown ten days ago. Brown’s family and their supporters have said they want “justice,” by which they generally mean they want to see Wilson face some kind of criminal charges. But whether that happens will depend on the enthusiasm of the prosecutor bringing the case and the quality of the evidence he can present.

Right now, both are pretty big question marks.

Here’s how the process will work, according to criminal law experts based or practicing in Missouri. The grand jury, which consists of twelve people plucked from the local population, will sit around a table in a deliberation room somewhere in the county courthouse building. It’s the prosecutor’s show: He will present the case, starting with an overview and then bringing forward evidence. But it’s not like a trial. There will be no attorney for the other side, no judge, not even a bailiff. For most of the time, they will be alone except for the prosecutor and, on occasion, a witness who will be providing testimony.

The idea behind a grand jury is that it serves as the people’s voice—in effect, a democratic check on the enormous power of prosecutors to bring charges and force people into trials. And just to be clear, a grand jury can be a truly deliberative body if it wants to do so. Members can ask for witnesses to appear and testify—and ask those witnesses questions directly. Grand juries can also control their proceedings, deciding how much evidence to hear and when, finally, to vote on charges. In Missouri, it takes at least nine jurors to deliver an indictment, which is known as a “true bill.” Any less and the jury reaches a verdict of “no true bill,” which means no indictments.

But grand juries rarely use such power. Instead, most just follow the lead of prosecutors, giving them enormous leeway. Not only do the prosecutors get to decide what charges to seek. They also end up choosing what evidence to bring forward—and how to present it. That’s particularly true in Missouri, I’m told, because it’s relatively rare for witnesses to provide testimony directly. Usually police officers read summaries of witness reports. Normal rules of evidence don’t apply; hearstay testimony is admissible. And of course there’s no opposing lawyer to make counter-arguments. “Grand juries are willing to exercise judgment and reject cases, but it doesn’t happen often,” says Frank Bowman, a professor of law at the University of Missouri. “They will be heavily influenced by the position of the prosecutor, whose views may be the only ones expressed—remember, there’s no representation of the defense overall.”

For these reasons, it’s no exaggeration to say the grand jury system is rigged in favor of prosecutors who want to get convictions. As the saying goes, a grand jury will indict a ham sandwich if that’s what a prosecutor wants.  But cases of alleged police misconduct are an occasional exception to this rule, because prosecutors work closely with police and—as a result—may be reluctant to pursue such cases aggressively. That would seem to be a real danger in the Brown case. As Angela Davis wrote for the New Republic last week, the prosecutor in this case is Bob McCollough, who has held the publicly elected position of St. Louis county prosecutor for 23 years. A few days ago, McCollough was openly critical of Governor Jay Nixon for calling upon state troopers to take over security Ferguson, calling the decision “shameful” and suggesting the decision “denigrated the men and women of the county police department.” McCollough’s father, a police officer, died in the line of duty—and he’s compiled a record of coming down hard on suspected criminals. 

Community leaders, including several elected officials, have called upon Nixon to replace McCollough with a special prosecutor. Nixon has said he won’t exercise that power, even though he has it. McCollough, for his part, has said the questions about his integrity are nonsense.

The other problem with the case against Wilson is that the evidence is murkier than many people seem to realize. Witnesses agree on how the incident between Wilson and Brown began. Wilson, in his squad car, spotted Brown and a friend walking down the middle of the street. Words were exchanged and some kind of altercation ensued. But what happened next is very much in dispute, as a story in the New York Times lays out today.

According to one version of the story, Wilson was the aggressor. In one telling, the officer grabbed Brown by the neck and pulled him down to the squad car. Brown freed himself and took off, prompting Wilson to pursue and open fire. Eventually Brown stopped, turned around, and was trying to surrender when Wilson shot him dead. A private autopsy, conducted by the family, showed that Brown was shot at least six times, including once to the top of the head. The angle of that shot, the one that likely killed him, suggests that Brown, who stood at six-foot-four, had his head down when the bullet hit. That would be consistent with Brown trying to surrender.

In the other version of the story, Brown was the aggressor in the altercation, punching Wilson in the face and reaching for the officer’s gun. When the gun went off during the scuffle, Brown took off—only to stop and turn, taunt Wilson, and then charge at him. That’s when, according to this account, the officer shot Brown dead. A fatal bullet to the top of Brown’s head would also be consistent with this story, since Brown could have had his head down if he was rushing at Wilson. 

Does that ambiguity matter? That depends. The legal experts I consulted said that good prosecutors have an ethical obligation not to bring cases when they don’t think they have a good chance of winning. “At the end of the day, I have to clear ‘reasonable doubt,’” Bowman says. “If I can’t say I believe the case beyond reasonable doubt, I shouldn’t bring the case.” But, in practice, prosecutors who want to get indictments usually do. “The probable cause standard is satisfied if there is enough competent evidence to warrant a reasonable person to believe that the defendant committed the crime,” says Sean O’Brien, a former public defense lawyer who is now a law professor at the University of Missouri-Kansas City. “Given the physical evidence that Mike Brown was shot multiple times, it is likely that any prosecutor worth his salt could get an indictment based on what is now known.”