The Ferguson police murder of Michael Brown is unsettling enough; an unarmed Black teenager shot 12 times from a distance of 148 feet. The real tragedy in Ferguson is the appalling failure of the justice system with St. Louis prosecutor Robert McCullough’s flagrant abuse of the grand jury system to prevent a trial.
< p>There are basically two ways to charge a crime: the prosecution issues an indictment and presents probable cause a crime has been committed at a preliminary exam hearing. The second way is for a prosecutor to present probable cause evidence to a grand jury that issues an indictment.
The prosecutor strictly controls the grand jury process. Defense attorneys are not allowed in the preceding and cannot produce any evidence. The prosecutor defines the charges it wants and presents enough evidence of a crime for the grand jury to indict.
A prosecutor has such wide discretion and control of the grand jury process that indictments are virtually automatic. As Sol Wachtler, the former chief judge of the New York Court of Appeals, so famously said, a prosecutor could persuade a grand jury to “indict a ham sandwich.”
First, why did Democratic Missouri governor Jay Nixon not remove “Fearless Bob” from prosecution for his obvious bias and conflicts of interest? This public official denigrated the governor for placing the local police under state control after their failure to even investigate the killing.
Mr. McCulloch’s mother, brother and cousins work for the St. Louis Police Department. His father was a St. Louis policemen killed by a Black suspect. His worse and obvious conflict is he is the president of a local police benevolent association, The Backstoppers.
His behavior with the grand jury is enough to get him disbarred. He deliberately set about to prevent a trial and fair weighing of evidence. Instead of presenting possible charges against cowboy Wilson, McCulloch left it solely up to the grand jury to determine legal charges.
Instead of identifying enough evidence to show probable cause of a crime, he dumped practically anything related to the case in front of the grand jury and said, you sort it out. His prosecutors cross examined their own witnesses, and questioned their testimony with unreliable and inadmissible information without contradiction to justify cowboy Wilson’s actions.
Their clear intent was to prevent an indictment and trial. They succeeded.
Bob McCulloch’s actions are akin to a surgeon inviting 12 people into his office and saying: ‘This person needs surgery. I am not going to tell you what type of surgery, or even the affected body part. I will give you no guidance as to how to determine whether surgery is needed. I will give you all medical records and information on all possible illness and injuries. Now come up with the medical diagnosis and how to proceed with surgery.’
The real tragedy is, why the citizens of St. Louis allow this unethical, perverted distortion of the justice system to occur. Why did a Missouri Democratic governor and senator allow this serial justice rapist to continue? The time is now for Black voters to hold the Democratic Party and its major interest groups accountable.
Clinton Killian is an attorney at downtown Oakland law firm Fried & Williams LLP and former public official. He can be reached at [email protected]