No Indictment is Outrageous, Even if Wilson is Innocent

Josh Wilson face

No Indictment. The announcement broke the suspense, if not the tension. 108 days after Michael Brown was killed by Darren Wilson, St. Louis Prosecutor Bob McCulloch announced that the grand jury had determined that there was no probable cause to indict Officer Wilson in the August 8th death on Canfield Drive.

Even as protesters flooded the streets around the country, calls were made to “respect the decision.” After all, isn’t the grand jury, after their extensive review, best positioned to rule on the events that transpired? How can protesters clamor for justice when they’ve barely had time to review the just-released evidence? Those who persevered in calling for justice were dismissed as race-baiters, or accused of reverse-racism and hatred of law enforcement. Due process had spoken the final word.

Except it hadn’t. What we’ve witnessed is a system that bends over backward to protect a white law enforcement officer while no such protection is found for the deceased black victim. Most of us don’t realize this because, after all, we aren’t lawyers. Without a frame of reference for how things normally work, it’s hard to know how to interpret what is occurring. Attorney, Cliff Nellis agreed to shed some light on irregularities in the process. Cliff holds a Juris Doctorate from the University of Chicago and specializes in Criminal Defense. He is the founder and lead attorney at the Lawndale Christian Legal Center in Chicago.

What’s the purpose of a Probable Cause Hearing?

There are two forms of probable cause hearings: a preliminary hearing and a grand jury proceeding. Preliminary hearings are public, and the judge, defendant, and defense counsel are present as well as the State. Defense counsel is also allowed to cross-examine the State’s witnesses to point out its weaknesses. Grand juries are a unique form of probable cause hearing because they are done in secret and there is no judge, defendant, or defense counsel present. Defense counsel cannot cross-examine State witnesses to point out any weaknesses. The State, therefore, is in full control of the grand jury proceeding.

It is also important to differentiate between a trial and a probable cause hearing. The probable cause hearing is a constitutional requirement that is designed simply to determine whether there’s probable cause to formally indict the defendant (bring charges). It is important to note that, at a probable cause hearing, neither the judge nor the grand jury determines whether the defendant is guilty or not guilty. The probable cause hearing merely measures the sufficiency of the State evidence to bring charges.  In contrast, a trial is where the State and Defense each present their case and the ultimate trier-of-fact (either a judge or a jury) evaluates all of the evidence to reach a verdict of guilty or not guilty. It is the role of this “fact-finder” (judge or jury) to determine which eyewitness accounts are more credible in view of all the evidence, not the role of the grand jury.

In other words, in Darren Wilson’s grand jury, the central problem with presenting the State’s witnesses’ accounts of the event and the Defense witnesses’ accounts of the event is that the credibility of differing accounts is a matter for a jury to decide. It is not appropriate for that determination to be made by a grand jury in light of the low burden of probable cause necessary to bring charges. The fact that there are State witness(es) whose account of the event supports charges against Darren Wilson is all that must be determined at a grand jury proceeding.

What’s needed to secure an indictment?

The legal term is probable cause. It is a minimal burden.  There needs to be evidence to believe that Darren Wilson committed a crime.  In a grand jury setting where there is no defense attorney present to cross-examine State witnesses, the State’s evidence is inevitably presented in a light more favorable than it actually is. Defense evidence is not presented by the State. This is why the phrase “you can indict a ham sandwich” exists. The State controls the proceeding and therefore controls the outcome.

Are there examples of indictments secured with minimal evidence?

Too many to count. To give you a sense as to how the grand jury process actually works, here are just two examples:

This week the State [prosecution] here in Cook County took a case to a grand jury after defense counsel presented the State with alibi evidence, including documentation that the defendant was on the other side of Chicago when the crime occurred. The State didn’t present a shred of that alibi evidence to the grand jury. The State instead went forward with their single witness, which is all they needed for probable cause to secure an indictment against this defendant. This is normal everyday practice.

The State went to a grand jury against one of my clients on Electronic Home Monitoring (EHM) last month. While on EHM, my client was attending Day Reporting. One particular day, he came out of Day Reporting to discover his mother locked him out of her house. He does not own the home, is not on the lease, and has no legal authority to live there (he’s 21). So, he spent the night at his girlfriend’s house and returned to Day Reporting the next day on time. Day Reporting, mind you, is inside Cook County jail. You literally go inside the jail to attend Day Reporting. My client’s Investigator at Day Reporting has already been to court to inform the State and judge that the above is true. Nevertheless, my client was arrested inside Cook County jail for “escape” and the grand jury returned an indictment for felony escape. The State did not tell the grand jury that my client was arrested inside cook county jail, nor provide them with any contextual evidence about his mother locking him out of his house. They presented their evidence that he simply did not return home and a finding of probable cause for felony escape charges was made. These are two of countless examples.

How should we have expected this case to be handled?

If this were treated as a normal case, there would have been an arrest shortly after the shooting. Bond court would be held the next day. This would be followed by a probable cause hearing (either preliminary hearing or grand jury proceeding) in three weeks. At the probable cause hearing, the State would present whatever evidence they have to support a conviction, and that evidence alone.

Most grand juries take 20-30 minutes. In nearly 100% of grand juries, the State only calls one witness – an officer that summarizes all of the State’s evidence (hearsay is allowed at probable cause hearings). Charges are often supported by a single witness making an identification in the dark of night with only a minute to view the offender and no physical evidence to support their ID.

Wasn’t McColloch being fair to present both sides?

Bob McColloch announces no indictment for Darren WilsonNo, at this stage of the proceeding, it is not appropriate to present all of the evidence.  It is certainly not appropriate for the State to present both the State’s case and the Defense’s case, and it is highly questionable whether the State is capable of doing that objectively.  It is the defense’s responsibility to present defense-friendly evidence, not the State’s responsibility, or vice versa.  It is an obvious conflict of interest for the State to present defense evidence. Regardless, it is not the legally-defined purpose of the grand jury proceeding to decide which eyewitness accounts are more credible.  The grand jury is charged with simply evaluating the State’s case to determine whether enough evidence exists to support charges.  We are right to question the integrity of Darren Wilson’s grand jury proceeding.

Did McColloch provide preferential treatment to Darren Wilson?

Yes, extraordinary preference:

  • First, Darren Wilson was never arrested. He does not have a bond. This is extremely unusual. I’ve never represented a defendant who wasn’t arrested before the State went to grand jury.
  • Second, in Cook County neither defendant nor defense counsel is even informed that their case is going to a grand jury, let alone informed of the day/time and then invited to attend. I’ve confirmed with St. Louis Attorney friends they have the same practice. Yet, Darren Wilson testified for four hours before the grand jury in St. Louis.
  • Third, in addition to presenting defense evidence and hours of defense testimony to the grand jury, McCulloch even went so far as to impeach State witnesses.
  • Fourth, it is important to understand that this grand jury has been hearing many other cases presented by the States Attorney’s office, but this is the only case in which the State presented all of the evidence, Defense and State.
  • Finally, this is also the only case that McCulloch did not instruct the grand jury as to what charges the State wanted to bring.

McCulloch’s bias was also evident in his extraordinarily long and detailed remarks framing the decision not to indict.  McColloch gave his interpretation of the evidence as if reporting on what actually happened, rather than outlining the State evidence and why it did or did not meet the low threshold of probable cause. He effectively usurped the role a judge or jury would have served at trial.

I wish there had been a defense lawyer at that press conference to Bob the simple question: is it not the role of a jury at trial to determine which eyewitness accounts are more credible in view of all the evidence, not the role of the grand jury?

It was Bob McColloch’s job to represent the interests of Michael Brown. Yet, there has been no evidence that Michael Brown’s interests were represented by the State even once during the last 100+ days.
How unusual was McColloch’s approach to prosecuting this case?
This doesn’t happen ever. It’s that unusual. It is unlike every other case presented. I do not have a single case where the State presented my client’s evidence to the grand jury.  This has literally never happened in my practice.  None of my defense attorney colleagues have had such a case either. People don’t understand how unusual it is for the State to do what they just did, and cannot therefore appreciate the travesty that just occurred.

Why is this a concern?

Equal treatment under the law is not only protected by the 14th Amendment of the US Constitution, it is the very foundation of fairness.  Justice does not allow us to play by one set of rules for some and a different set of rules for others.

Some have said that civilian defendants should get the same benefits Darren Wilson received in his Grand Jury Proceeding in Ferguson. Even if that were true, until that time comes, we must apply the same rules to everyone. Even if the rules are wrong, applying the same rules to everyone is better than applying the wrong rules for some and the right ones for others. This makes it unlikely those practices/policies will ever change because the system works better for some than others, and weakens the will of the majority because it only affects the minority. Presenting the grand jury with hours of defense evidence and over 100 days of investigation is so unusual and favorable to the defendant that it is truly insulting to every other person who has faced charges and not been afforded anything close to that treatment. It’s astonishing to see how flagrantly McCulloch has been able to treat people from certain communities differently. It’s a great abuse of power to exercise one’s power so inconsistently. I hope Bob is voted out of office for this.

What effect did this have?

Bob McCulloch obtained the outcome he desired; no indictment. If McCulloch wanted to indict, it would’ve happened. The grand jury proceeding is set up such that the State controls the outcome. The outcome of this grand jury was dictated by the evidence Bob presented and the way he presented it. The decision not to indict was made by Bob and not his grand jury.

In the end, Wilson had nothing to defend because the State was doing the defending for him. The system doesn’t work when the players don’t stay in their own lanes. There are procedures and safeguards in place that are followed in all other cases. The State is to present their case to the grand jury as they do in all others, and trust that the grand jury will not return an indictment if the State did not have sufficient evidence to support probable cause.

Was there enough evidence to indict Darren Wilson?

I can say with absolute certainty that under the current grand jury rules and practices, there is more than enough evidence to secure an indictment against Darren Wilson. It is rare to have five eyewitnesses view an event in broad daylight and give remarkably similar accounts of Michael Brown fleeing and surrendering before being shot by Darren Wilson. The State only needed one witness for probable cause; the extra four were just gravy for probable cause.

Would it have been possible to secure a conviction had the case gone to trial? Because of McCulloch’s preferential treatment of Wilson, we’ll never know. McCulloch’s job was to prosecute Darren Wilson. In failing to make the case for which the evidence begged, McCulloch shielded Darren Wilson from due process, and robbed Mike Brown of a trial. Because McCulloch abdicated his role, Wilson was never asked about discrepancies in his statements. Important questions were left unanswered. Holding proceedings beyond public scrutiny allowed major errors to go unchecked. Behind closed doors, all 77 inches 287 pounds were quietly brushed aside. We’re left to rely on a jury’s presumptuous verdict, when only a decision of probable cause was called for. Pale assurances are the best we can offer to yet another black family whose son will never come home.

Certainty about whether Wilson’s actions were warranted may be out of reach, but no such hesitation is necessary in admitting that we’ve witnessed a tragic miscarriage of justice. The 14th amendment of the United States Constitution guarantees all persons “equal protection” under the law. Instead, Wilson was offered an unparalled level of protection. Because of the prosecutor’s intervention in this case, we will never know whether Wilson’s actions were justified. What we do know is that injustices like this in our system are not strange to people of color.  It has been well-documented that racial bias leads to harsher enforcement and sentencing for blacks committing the same crimes as white counterparts. By contrast, no matter how serious the crime committed by law enforcement, they almost never face charges or trial.  All of us harbor assumptions based on race, sometimes acknowledged, sometimes not. Both Wilson and Brown carried their assumptions into the tragic events of August 9th and even Wilson may be unaware as to how he weighed various factors in his decision to shoot Michael Brown. Demanding that the rule of law apply to those who enforce the law is not to be “against law enforcement.” Whether Wilson is guilty or innocent, anyone that cares for the Constitution or justice should be outraged at the decision out of the Clayton courthouse. If justice is to be just at all, it must be measured by how effectively it holds the powerful accountable for their actions toward the weak. Today, justice failed.

That Justice is a Blind Goddess is a thing to which we Black are wise;
Her bandage hides two festering sores that once perhaps were eyes.
– Langston Hughes

Special thanks to Attorney Cliff Nellis for his expert counsel on this article.

(Josh Wilson works at the Lawndale Christian Legal Center, Chicago, IL)


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