What Everyone (Else) Has Wrong About Ferguson

So much has been written about the failure of the St. Louis County Missouri grand jury to indict police officer Darren Wilson in the shooting death of Michael Brown that I hesitate to add my voice to the cacophony. Nevertheless, since I have yet to read a piece that I think gets to the heart of the matter, I feel justified in adding my proverbial “two cents.”

Most of the commentary, including from many libertarians, is critical of prosecutor Bob McCulloch for not securing an indictment, and thereby freeing Officer Wilson of all (state) criminal charges. These opinions generally argue that a trial jury should have been permitted to determine Wilson’s guilt or innocence. Prosecutor McCulloch, on this view, is at fault for short-circuiting this process, thus potentially allowing a guilty man to escape justice.

This perspective is defensible only if you start with the assumption that there was clear and convincing admissible evidence that Wilson was guilty of at least one criminal act. If there was, then the Prosecuting Attorney clearly was culpable because, as we have all heard by now, a prosecutor should be able to indict a ham sandwich. Meaning, that because: (i) grand jury proceedings are ex parte (defense counsel is not present), (ii) the prosecutor selects the evidence to be presented, and (iii) juries tend to defer to the judgment of the prosecutor, a determined prosecutor can indict almost anyone for anything.

I cannot peer into McCulloch’s soul, but I am unwilling to assume bad faith on his part absent stronger evidence than I have seen. And, if you start with the premise that he believed in good faith that there was insufficient credible evidence to establish Wilson’s guilt beyond a reasonable doubt at trial (the applicable evidentiary standard), then he was not just legally, but morally required, not to seek an indictment. This is what everyone else seems to have missed.

This conclusion inexorably follows from the Missouri Supreme Court Rules, Rule 4-3.8 (“Special Responsibilities of a Prosecutor”). The critical component here is the Court’s Comment 1 to this rule, which provides in relevant part:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense.

The rule’s declaration that a prosecutor is a “minister of justice” and the command that guilt be “decided on the basis of sufficient evidence” counsels against indicting a person unless the state’s attorney believes in good faith that there is sufficient admissible evidence to convict the defendant at trial. A contrary practice invites a gross injustice; that is, the trial jury wrongly convicting an innocent man because there is some evidence against him, but not proof beyond a reasonable doubt. Alternatively, an innocent defendant may nevertheless feel compelled to accept a plea bargain faced with the possibility of a wrongful conviction and a stiff sentence.

     Moreover, Comment 1 implicitly endorses the ABA Standards, and Standard 3-3.6 (“Quality and Scope of Evidence Before Grand Jury”) thereof provides:

(b) No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.

(c) A prosecutor should recommend that the grand jury not indict if he or she believes the evidence presented does not warrant an indictment under governing law.

So, a prosecutor may not seek an indictment if probable cause is lacking, and even if an indictment is handed down, Standard 3-3.9 (“Discretion in Charging Decision”) states that, “A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction” (my emphasis).

Thus, according to the most rigorous ethical standards of his office, Prosecutor McCulloch was not entitled to selectively present evidence to the grand jury so as to obtain an indictment, nor was he permitted to recommend an indictment if he did not honestly believe that probable cause existed. Furthermore, even if probable cause existed, there would be no legitimate purpose served in obtaining an indictment, since he could not proceed to trial absent proof beyond a reasonable doubt.

What he was authorized to do, and what seems in fact to have happened, was that he used the grand jury as an impartial fact-finder, and let the jurors come to their own conclusion without his making a recommendation.  It seems quite obvious that prosecutors (and possibly even McCulloch) have routinely flouted these standards in other instances, and so shame on them. But this hardly justifies criticism of the prosecutor’s conduct in the Brown investigation.



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