Sometimes the wheels of justice grind slowly and sometimes they race around in circles like they’re competing for the Porsche Cup. In the Ferguson case, the latter seems to be the way it’s going. “Big Mike” Brown was shot and killed on August 9th. Jury selection started on the same day in every kitchen in America. The guy’s not even in the ground yet but the race to official judgment goes on, making haste rapidly . . .
The Michael Brown Autopsy Tour is moving to Washington, or wherever the Feds want it, for a third autopsy. Let’s keep that in context — Brown will have had more autopsies than John Fitzgerald Kennedy. That’s cause for wondering about priorities, and also whether the forensic pathologists are looking for evidence or coverage for their own buttocks.
Back at the ranch, the Feds are conducting a “parallel investigation,” looking for any evidence that Brown was deprived of his civil rights when he was shot by Ferguson police officer Darren Wilson. Eric Holder is promising “big changes,” so his inclinations are obvious.
Just to keep these ingredients from settling to the bottom, a state Grand Jury started hearing evidence yesterday. Yesterday! According to St. Louis County prosecuting attorney Robert McCulloch, “local investigators” have interviewed Wilson and a bunch of other witnesses. If the local investigators have actually completed their investigation, McCullough isn’t saying. Usually the Grand Jury doesn’t hear a case until the field investigation is complete, for reasons that should be as obvious as Eric Holder’s intentions. But in this case, speed seems to be as important as accuracy. Maybe more so.
Gov. Jeremiah “Jay” Nixon, who had called for thorough prosecution rather than investigation and then tried to backtrack, has a bone to pick with prosecutor McCulloch. It seems that the prosecutor has a strong connection with police, notably through McCullough’s father who was a cop before he was murdered by a black criminal. Well, Holder says that he was victimized by racial prejudice on the part of whites, so I guess Nixon must want him to go, too. No?
McCullough was having none of it. He called on Nixon to either relieve him of his duties or to STFU. Apparently Nixon chose to STFU and will not replace McCullough, at least for now, probably because Nixon was still removing his size 12 foot from his mouth. Or possibly because Nixon is positioning McCullough as a scapegoat. In any case, McCullough is in charge of the state’s case, at least for now.
So what’s next?
McCullough did not have to proceed via the Grand Jury route. He could have pulled an Angela Corey and gone directly to a judge for a probable cause finding (as he still might), but McCullough chose instead to proceed by indictment rather than by “information.” The Grand Jury investigation will go forward until it votes or somebody stops it from voting by preempting it.
The standard in a Grand Jury proceeding is whether or not the jurors collectively find “probable cause” to believe that a crime has been committed. In Missouri, nine out of the twelve Grand Jurors must agree on a finding of probable cause – voting a “true bill” – in order to return an indictment. If nine don’t agree, they will return what is sometimes half-humorously referred to as a Bill of Ignoramus. In such a case, there is no indictment and no state trial. At least, not right away. But since jeopardy does not attach by virtue of a Grand Jury, Wilson could still face the same state charges sometime down the road even after being “no-billed.”
It’s often claimed that the prosecutor can indict a ham sandwich. Hence the recent indictment of Rick Perry for performing his duty as governor. Certainly, this is true when the ham sandwich is accused of blowing away a teenager, even if the teen in question was the size of a refrigerator. In a Grand Jury proceeding, there’s no judge, no defense and the prosecutor alone gets to decide what evidence the Grand Jury will hear, including hearsay. The prosecutor isn’t required to present any exculpatory evidence, which in this case is evidence that would tend to exonerate Wilson. The prosecutor can cherry-pick the evidence if he wants and present a lopsided case. That’s why ham sandwiches get indicted.
Grand Jury proceedings are also secret. Completely secret. But McCullough says that he will release the case to the press after the GJ reaches its decision, one way or the other. That’s just great, unless you are a local confidential informant for or against Brown or Wilson, in which case you might want to consider finding new quarters in Grand Forks or Tehachapi.
McCullough has already intimated that he will make a comprehensive presentation to the GJ, meaning that the Jurors will hear even exculpatory evidence. He has stated that he will allow Wilson to testify if Wilson wants to. That’s not unprecedented, but must be viewed as fair. It seems that McCullough wants to do his job, which includes the fair administration of justice. If true, he’s the un-Cory. One can only wonder if McCullough’s claim that he will be fair is the actual reason that many want to remove him from this case.
If the GJ indicts Wilson, there will be a trial down the road. Maybe two trials. The state trial will likely be for some form of homicide – maybe murder, manslaughter or some lesser included offense. There may also be a Federal trial. The Feds have wiggled their inquisitive nose under the tent, so I expect that Holder et al. are considering bringing a civil rights case against Wilson if the state homicide case peters out, as the Feds did in the Rodney King case.
The Grand Jury may be hearing this case for the next six weeks before they return a true bill…or they don’t. Until then, Wilson should spend the majority of his time finding the best goddam lawyer that money can buy. Expect that more revelations will be leaked to the media by agents both pro-Wilson or pro-Brown. And for the sake of the good people of Ferguson, let’s hope that the Grand Jury says nothing until the weather, and tempers, turn very, very cool.