Ferguson reminds us that we still have a race problem in America. But the face of this problem is not Darren Wilson’s. It’s Bob McCulloch’s.
Wilson, the Missouri police officer who shot and killed an unarmed black teenager, is the target of most public ire. But no responsible person thought Wilson’s killing of Michael Brown was premeditated. Even if prosecutors tried him on lesser charges of involuntary manslaughter, they might well have come up empty — and most people would have accepted that result of a fair trial.
What causes the outrage, and the despair, is the joke of a grand-jury proceeding run under the auspices of McCulloch, the St. Louis County prosecutor. In September, I wrote that it appeared he wasn’t even trying to get an indictment; he had a long record of protecting police in such cases, and his decision not to recommend a specific charge to the grand jury essentially guaranteed there would be no indictment.
When McCulloch announced the inevitable result Monday night, he prefaced it by blaming the press and social media for whipping up emotions in the case with inaccurate information. He went on to ridicule witnesses who had given inconsistent testimony. He hid behind the grand jurors, as if he hadn’t orchestrated their decision with the finesse of conductor Christoph Eschenbach: “Anyone suggesting that somehow it’s just not a full and fair process is just unfair to these people” who “gave up their lives” to deliberate.
McCulloch essentially acknowledged that his team was serving as Wilson’s defense lawyers, noting that prosecutors “challenged” and “confronted” witnesses by pointing out previous statements and evidence that discredited their accounts. “Physical evidence does not change because of public pressure or personal agenda,” McCulloch lectured piously. “Physical evidence does not look away as events unfold.”
But physical evidence, like eyewitness testimony, is imperfect and often ambiguous. McCulloch knows this; that’s why he hedged in saying Brown’s wounds were “consistent with a close-range gunshot” and “consistent with his body being bent forward.” McCulloch acknowledged that you could “take out a witness here, a witness there, and come to a different conclusion.” And that’s exactly why we have public trials: to litigate conflicting accounts in a setting where the burden of proof is much higher than the probable-cause standard of the grand jury.
Instead, McCulloch short-circuited the process — reinforcing a sense among African Americans, and many others, that the justice system is rigged. He almost certainly could have secured an indictment on a lesser charge simply by requesting it, yet he acted as if he were a spectator, saying that jurors decided not to return a “true bill” on each possible charge — as if this were a typical outcome.
As has been repeated often in recent weeks, a grand jury will indict a proverbial ham sandwich if a prosecutor asks it to. Alternatively, McCulloch could have brought charges through a judicial hearing; he chose not to do that, either.
Asked Monday night whether he had any regrets about the way he handled the case, McCulloch replied, “No, not at all.” This shouldn’t be a surprise, given McCulloch’s history. That his father, a police officer, was killed by a black suspect doesn’t by itself disqualify him, but his record should have: not a single prosecution of a shooting by police in his 23 years on the job. Four times he presented evidence to a grand jury in such a case and didn’t get an indictment; now he can add a fifth.
Yet McCulloch had the gall to put the blame Monday night on everybody but himself and the shooter. “The most significant challenge encountered in this investigation has been the 24-hour news cycle,” he proclaimed. “Following closely behind were the nonstop rumors on social media.” The prosecutor also took apart witnesses who “made statements inconsistent with other statements they made and also conflicting with the physical evidence.”
But he was less troubled by inconsistencies that worked against Wilson. McCulloch implied Monday night that Wilson stopped his car to confront Brown because he recognized him as a robbery suspect. But Ferguson police chief Tom Jackson had said publicly that the robbery “had nothing to do with the stop.”
After his lengthy attempt at self-exoneration, McCulloch offered his hope that people would react to the Brown decision by making “changes so that nothing like this ever happens again.”
And what, a reporter asked, would he propose changing?
McCulloch was stumped. “There’s just no way to answer a question like that,” he said.
Actually, there is. How about letting the justice system run its course?