I have heard several people express the sentiment that the recent Ferguson decision was the system working exactly as intended. While I understand the power in such a chilling statement, it belies the utter procedural travesty that just occurred. Though I am not a Missouri attorney, I am a licensed attorney in my own jurisdiction, and I want to take a few minutes to unpack what just occurred–though understanding the legal implications does not make them less horrifying, it does illustrate exactly why federal prosecution should occur.





The fact that McCulloch was allowed to prosecute this case is staggering.

There are numerous reasons why McCulloch had a conflict of interest around prosecuting this case, which is exactly why Brown’s family and several civil rights groups repeatedly moved for a special prosecutor. That request was more than reasonable, given the circumstances, and it should have been granted. McCulloch responded to this call by telling the Governor to “man up” and oust him if he was supposed to be recused, because he wasn’t going to recuse himself. McCulloch’s prosecution strategy, as I’ll discuss below, illustrates exactly why the governor should have done just that.





The fact that the grand jury contained exactly one black man is staggering.

In Missouri, as in many other states, 12 grand jurors are selected from a larger pool by the presiding judge, and 9 must vote in favor of indictment in order for it to occur. Not coincidentally, there were 9 white jurors and 3 black jurors on the jury, and though 6 of the white jurors were men, only 1 of the black jurors was. In other words, literally half of the jurors were white men. Statistical studies show that white jurors perceive police officers differently than black jurors, and women are commonly believed to be more ‘compassionate’ than men. Though the jury is supposed to be Wilson’s peers, rather than Brown’s, the jury pool appears to be selected in a way that is chilling at best.





McCulloch’s prosecution strategy was staggering.

As this article helpfully notes, a grand jury proceeding does not work like a regular trial–there is no opportunity for defense counsel to bring witnesses or cross-examine witnesses the prosecutor brings forward; forms of evidence that would be inadmissible at trial are permitted; and prosecutors are free to select which charges they want the jury to deliberate upon. A grand jury proceeding is so much the prosecutor’s show that New York State chief judge Sol Wachtler was famously quoted by Tom Wolfe in The Bonfire of the Vanities that “a grand jury would 'indict a ham sandwich’ [if the prosecutor so desired].” The Washington Post politely calls McCulloch’s approach 'atypical,’ but I personally have no problem stressing that it was outright bizarre.

He didn’t even wait to finish investigation before he launched a grand jury trial, and central to his case was four hours of testimony from Wilson himself. It is very rare for defendants to testify at grand jury proceedings, because prosecutors cannot compel them to be brought as witnesses for their own charges–but perhaps Wilson was unconcerned because McCulloch did not even give the jurors charges to consider. In fact, he stated that he would be “presenting absolutely everything to this grand jury … [e]very statement that a witness made, every witness, every photograph, every piece of physical evidence. Absolutely nothing will be left out, so the grand jury is making their decision based upon absolutely everything and we’ll go from there.” And that appears to be exactly what he did.

Leaving aside, for the moment, the question of how he could show the jurors everything when he hadn’t even finished investigation yet, a grand jury proceeding is not a trial. By showing the jurors “absolutely everything,” when the defense isn’t even supposed to be permitted to bring a case, McCulloch essentially turned the jurors into a de facto fact-finding body. In other words, they were performing the role of a trial jury, but without jury instructions, a presiding judge, a defense attorney, or proper rules of evidence for a trial. As several articles note, the actual facts of this case were murky at best. The time and place for fact-finding was at trial–it was not McCulloch’s job to show the jurors “absolutely everything;” it was his job to prosecute the damn case.

In short, there was no way to avoid yesterday’s result, because this was in no way a proper legal proceeding. If we want to see an actual unbiased legal proceeding take place at this point, we need to see action from the federal system.