The Ferguson Prosecutor, McCullough, 'Failed' to get a GJ Indictment. How rare is this?

[sabrina 1]

According to Nate Silver's Blog, author Ben Casselman, failure to get a Grand Jury Indictment is statistically very, very rare!

It's Incredibly Rare For A Grand Jury To Do What Ferguson's Just Did

A St. Louis County grand jury on Monday decided not to indict Ferguson, Missouri, police officer Darren Wilson in the August killing of teenager Michael Brown. The decision wasn’t a surprise — leaks from the grand jury had led most observers to conclude an indictment was unlikely — but it was unusual. Grand juries nearly always decide to indict.

Or at least, they nearly always do so in cases that don’t involve police officers.

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

......

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”

This is true, in fact, the frequency with which Prosecutors get indictments from GJs has been the topic of controversy for a long time.

Except in the cases of Police Officers. Why are GJs less likely to indict Police Officers?

There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. The second is prosecutorial bias: Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.

Iow, the system itself is responsible for the lack of justice in cases of cop killings.


A Grand Jury Indictment is Extremely Common

"A riot is the language of the unheard." - Martin Luther King, Jr.

Justice was unlikely in the case of Darren Wilson and Michael Brown. This is a world where hundreds of thousands of dollars were raised to support the man who shot to death an 18-year-old boy and left his body in the street. But that Darren Wilson won't even go to trial - that we won't even get the rote, mechanical illusion of justice - demonstrates precisely what black lives are worth to our judicial system.

Stop calling the protests in Ferguson "riots." These are the protests of those who have gone unheard, who deserve justice and receive tear gas. These are the protests of people who know that what happened to Michael Brown - and Trayvon Martin, and Oscar Grant, and Amadou Diallo, and Sean Bell, and Kendrec McDade, and so many others - will happen again and again, and that no one will be brought to justice for the killing of their sons, fathers, husbands, brothers, friends.

Black lives matter. The people of Ferguson deserve to be heard. Hear them.

Read the statement from Michael Brown's family, and follow the fight to require all police officers to use body-worn cameras.

They 'system' did work. The Prosecutor, McCullough was acting as a Defense Attorney for Wilson from what I heard from him.

So who was representing Mike Brown?

[uppityperson]

1. Against a cop? That blue line thing sure as shit is a strong one.

Thanks for the article.

[sabrina 1]

2. Wilson was fired from his last job, his whole Dept was fired. A real prosecutor would have

told this to the Grand Jury. IF he actually wanted an indictment.

Some of those fired were rehired, but not Wilson.

I have not seen this mentioned at all on the Corporate Media.

[noiretextatique]

14. i've seen it

i think the town was Jennings. the city council disbanded the entire police force because of "tensions" between them and the black community. i had to so an internet search for it, though. i have not heard it in the MSM either.

[IDemo]

3. I am less than certain that body cams on cops will have the desired effect

At least, not always. Videos will remain open to interpretation and yes, editing or deletion when it's considered necessary.

[sabrina 1]

4. True, they can manipulate evidence. However, I did read that in at least one precinct, police

violence did go down are the body cams were installed. So while it isn't perfect, it is something they have to think about before the just start shooting.

[BillZBubb]

6. There must be mandatory penalties for turning off the cameras too.

Cops have learned to turn off cameras when they might show something they don't want to be seen.

[BillZBubb]

5. If the prosecutor made an effort to get an indictment it would have happened.

The prosecutor leads the grand jury along. They see things the way he wants them seen.

Clearly in this case, like almost all involving a police defendant, the prosecutor didn't want an indictment. He got what he wanted.

[etherealtruth]

7. Agree on all counts!

[Little Star]

12. yep.

[sabrina 1]

15. Yes, I think it's obvious that the Prosecutor did not want an indictment of Wilson.

[JEB]

8. Thanks for posting.

Some excellent points clearly stated and illustrated in the OP and following comments.

[JEB]

9. 11 out of 162,000. Talk about beating the odds.

Fewer indictments denied than bullets fired by Wilson. This is fucking unreal. They must rally be afraid for this to go to trial.

[yeoman6987]

11. That was federal. This was done by state

Those figures would show more accuracy. Mostly 100 percent at the state level went to trial.

[JEB]

13. I've heard that the feds have a tougher standard for indictment.

So even more egregious that killer cop doesn't even have to face a trial.

[sabrina 1]

19. That's why people say that a prosecutor, if s/he WANTS it, could indict a ham sandwich.

McCullough did not want an indictment, which must be obvious to anyone who doesn't have an agenda.

[underpants]

10. Saw that stay earlier. Great sign - spot on

[badtoworse]

16. It's rare because prosecutors don't go to grand juries with cases that are not winnable.

Do you think that would been a reasonable option for McCulloch?

[sabrina 1]

17. I'm not sure what you are asking. But what I think is that McCullough should have recused himself

completely as he was asked to do. He definitely did not want an indictment. That was clear early on. And now we see how true it was.

[badtoworse]

18. Assuming the grand jury heard everything, what difference did what McCulloch thought make?

If he withheld damaging evidence, then you could argue that he didn't want an indictment. I thinks it's highly unlikely that happened because the feds were conducting a parallel investigation and might well have independently developed the same evidence. At best, that would been a huge embarrassment for McCulloch.

[sabrina 1]

20. Was there anyone there to question any of the 'evidence' presented? Why do you think he would be

embarrassed for doing what was expected of him by those he cares most about?

Eg, did he tell the GJ about Wilson's previous job from which he was fired, his entire dept was fired, mainly for corruption, for too many lawsuits by the community due to racism etc.

If this was a real court of law, someone could have asked Wilson why he was fired, why he didn't reapply to his previous dept. I would like to know the answers to those questions.

Did anyone ask him why he didn't write a report of the incident, as is customary, right away?

What was he waiting for in terms of writing that report? He certainly had lots of time to 'fit the evidence to the crime'. Was that issue raised before the GJ?

McCullough is hero right now to the cops and the power structure he is a part of. They live in their own bubble.

He WOULD have been hugely embarrassed if the GJ HAD indicted Wilson. He would have been viewed as a traitor in his circle.

Which is why he was asked to recuse himself. To allow a special prosecutor, with no ties to the police there, to handle the case.

[badtoworse]

21. I think you misinterpreted what I said

IMO, there are two key points in all this. The first one is the question of whether Wilson had probable cause to confront Brown. If he did not, then the issues you raised (Wilson's past) have relevance, but most likely not to the case the grand jury was hearing. If Wilson had no probable cause then he could potentially be charged with federal civil rights crimes and his state of mind and past issues with Black people become central to a federal case. If he did have probable cause, then Wilson's past is irrelevant as to whether he had reason to confront Brown - in that case, Wilson had a duty to stop Brown, his past notwithstanding.

Another consideration in not bringing up Wilson's past is the involvement of the feds. McCulloch was well aware that the feds were on the case and would be looking at the civil rights aspects. Given that, why would McCulloch present evidence relevant to a federal case to a grand jury investigating state charges? He had no reason or need to.

McCulloch stated that Wilson was aware that a robbery had taken place, had a description of the suspect and recognized Brown as the likely suspect. IMO, that is certainly probable cause and Wilson had an obligation to confront Brown. Given how important this point is to a federal case, I am sure that federal agents looked at it very closely.

The other point is what actually took place after the confrontation was initiated. McCulloch stated that ALL of the testimony and evidence was given to the grand jury. If that is true, then the grand jurors were in a position to decide for themselves which witnesses were credible and which were not. McCulloch's opinion about that would be irrelevant, as would the fact that he detailed why certain witnesses were deemed not credible in his press conference. Unless McCulloch withheld evidence damaging to Wilson that a different prosecutor might have presented, then I don't see how a different prosecutor would have gotten an indictment.

As far as the embarrassment goes, it relates to McCulloch's statement that the grand jury had gotten everything and that they were sharing everything with the feds. If the feds, knew that to be false or if they later discovered that Wilson had been withholding evidence, it would have become public. At best, McCulloch would have been disgraced and potentially would have been open to prosecutorial misconduct or even obstruction of justice charges. McCulloch would have been taking a huge risk if he did not present all the facts.

You pointed out that a return of no true bill is rare. Prosecutors don't waste time with cases they do not believe they can win, so that means that, before he goes to the grand jury, the prosecutor is confident he can convince twelve out of twelve jurors to convict in a criminal trial. Given that, convincing nine out of twelve on a grand jury should be easy, hence the low number of "no true bill" results. In my opinion, McCulloch did not believe that Wilson could be convicted in a criminal trial, and under "normal" circumstances, he would not have presented to the grand jury. Had he done that, the outrage would likely have been even worse than what we are seeing now. McCulloch had no choice but to take the case to the grand jury and the best he could do was present all of the facts and let the grand jury decide. I believe he did that.

Lastly, I don't believe it would have been proper for McCulloch to recuse himself. To have done so would been a statement that he did not believe he could be fair in a trial involving a confrontation between an LEO and a Black person. If that's true, then he has no business being a prosecuting attorney. If a special prosecutor was needed, I believe the governor should have been the one to make the appointment.

[sabrina 1]

23. I was in a rush when I responded to your comment earlier. Just wanted to say that you made some good

points regarding raising Wilson's past eg.

Re probable cause, which Wilson may or may not have had, this puzzled me:

McCulloch stated that Wilson was aware that a robbery had taken place, had a description of the suspect and recognized Brown as the likely suspect. IMO, that is certainly probable cause and Wilson had an obligation to confront Brown. Given how important this point is to a federal case, I am sure that federal agents looked at it very closely.

The Ferguson Police Chief said that Wilson did NOT have that information 'in his initial contact with Brown'. See here:

Ferguson police chief Officer didn't stop Brown as robbery suspect

- The Ferguson police officer who shot Michael Brown didn't stop him because he was suspected in a convenience-store robbery, but because he was "walking down the middle of the street blocking traffic," the city's police chief said Friday.

Ferguson Police Chief Thomas Jackson -- hours after documents came out labeling the 18-year-old Brown as the "primary suspect" in the store theft -- told reporters the "robbery does not relate to the initial contact between the officer and Michael Brown."

So there's definitely a contradiction there. I don't know how that was handled before the GJ.

Iow, this prosecutor provided a probable cause, as you pointed out, that was contradicted by the Police Chief. This is why you need trials. Someone needs to challenge what was presented. That is just one example.

Regarding McCullough providing the evidence he presented to the GJ to the Feds, I doubt that would be a problem even if he picked and chose what to present and what not to. They are not going to try to second guess a prosecutor, there are enough problems with this case as it is. And it's likely he's willing to risk some embarrassment for what is most important to him.

Btw, he could have recused himself legitimately. His own father was killed decades ago, a cop I believe, by an African American man. And he himself is very closely associated with the police. Those are grounds for recusal imo.

[badtoworse]

25. I agree with you about the Police Chief's Statement.

It definitely contradicts what McCulloch said and I'm a little surprised no reporter asked about it the press conference. That is a point that definitely needs to be addressed. It's such an obvious point that I don't see how it could not have come up during the GJ proceedings. I don't have an explanation, but it's possible the Police Chief did not have all the facts when he made the statement.

I'm pretty skeptical that the discrepancy is part of a conspiracy having taken place, as a number of posters have suggested. I would think that a lot of evidence would have to be altered, a number of people would have to be onboard with a revised story and all would have to be consistent with each other. There couldn't be any leaks other or it would unravel pretty quickly and all of this would have to be done with the feds watching. Anything is possible, but successfully pulling off something like that would be very difficult in my opinion. Moreover, that assumes that everyone from the county prosecutor on down would be willing to participate. To be sure, there are a lot of dirtbags on police forces around the country, but I believe that most LEO's are honest, principled people whose moral compass would not allow them to participate in such a conspiracy. Even the dirtbags would have to weigh the risk and consequences of being caught before agreeing to alter evidence to get Brown off the hook. To me, the idea of a conspiracy is pretty far-fetched and I expect that there is a plausible explanation for what the chief said.

I don't have the time to read through the transcripts and evidence, but I'm sure a lot of people on DU are doing that now. We will undoubtedly learn more as that goes on and perhaps the question of probable cause will be definitively answered.

We really need to hear from the Justice Department on this matter to gain some perspective on this and hopefully, that will happen soon.

[sabrina 1]

32. We know now how this was handled before the GJ. It appears that a second officer gave testimony

regarding whether or not Wilson knew about the robbery. This witness corroborates the Chief's statement that he did not. See here for a transcript of the officer's testimony before the GJ: http://www.democraticunderground.com/?com=view_post&forum=1002&pid=5873607

Addionally there is the original eye witness account of Brown's friend, Johnson who actually saw everything from the moment Wilson pulled them over. He also stated that Wilson stopped them for walking down the street. So now there are three statements contradicting McCullough and Wilson.

Which seems to mean that McCullough and Wilson both lied to the GJ.

And there is more damning evidence that this entire process was tainted by the Prosecutor himself, the fear of which is why people asked Nixon, the Gov, for a Special Prosecutor/

It appears the McCullough was RAISING FUNDS for Wilson, nearly half a million before the website was taken down.

In what legal scenario is okay for a prosecutor to raise funds for his own, supposed, 'suspect'??

I will post a link to that info when I get a chance.

The Bar Association has raised questions also about the process. Imo, it is now so tainted that the entire process needs to start all over again.

Btw, I agree there are good cops who would not go along with any plan to deceive the GJ. And it appears that is true, as the officer who testified shows.

[badtoworse]

35. You're following this closer than I am.

I'm finding it hard to believe this could have gone on under such intense, national scrutiny, but the transcripts are what they are. I'd like to listen to McCulloch again and hear exactly what he said at the press conference. It appears that what happened is that Wilson did not connect them to the robbery until after he stopped them for walking in the middle of the street.

Again, I would like to hear the Justice Department's take on all of this.

[sabrina 1]

36. Wilson did not write a report, which is standard procedure for cops, until long after the shooting.

And his claim that he knew about the robbery during his encounter with the teenagers, is confusing at best. The second officer testified that Wilson did NOT know about the robbery, he spoke to him and states that he knows Wilson did not know about it. For one thing, the call about the robbery was not Wilson's call so there is no reason why, in the middle of the altercation, where he claims he was in fear for his life, he tuned into a call that was not for him.

Johnson, the other teenager and the second cop contradict Wilson's and McCullough's claims.

How could it have happened under so much scrutiny without questions being raised? It didn't, questions were being raised all the time.

They simply were not answered. The most obvious question from the start which WAS raised over and over again was, 'why was McCullough not removed from the case and a special prosecutor from outside the area, appointed.

What is happening now, a new revelation every day, demonstrates why that question was asked in the first place. Iow, the fears people had and expressed, are being verified with each passing day.

[badtoworse]

38. I'm going to wait to hear what the feds have to say

I hope you have a nice Thanksgiving with family and friends.

[sabrina 1]

22. Did the GJ hear from the witness who saw everything from the beginning? The friend who

was with Michael Brown. I remember his testimony. It contradicts the officers' testimony regarding the initial contact between him and Brown. I don't know if he was called as a witness since attempts were made from the beginning to discredit him.

Why didn't Wilson file a report right after the killing?

Why did he fire the last shot when it was clear Brown was badly injured already?

Prosecutors lead the GJ. Did you read the statistics in the OP regarding how rare it is for a prosecutor NOT to get an indictment from a GJ? You have to be either a pretty bad prosecutor OR you have to present the suspect in a sympathetic way. Which appears to be what happened here.

The American Bar Association agrees that the lack of an indictment in this case doesn't make sense.

Legal analysts around the country are questioning why the prosecutor didn't seem to want an indictment.

As for him worrying about the Federal Investigation, why would he worry about that? So long as he satisfied the police and his friends in Ferguson, what happens after that doesn't concern him.

I hope there is a Federal Indictment so we have a public trial where everything is out in the open. And I hope Brown's parents file a wrongful death lawsuit so that Wilson will be cross examined rather than allowed to ramble on without challenge.

[AverageJoe90]

24. I disagree on one thing: the system *failed*, as it so often has for black folks.....

At least compared to whites, anyway.

[JEB]

26. "So who was representing Mike Brown?"

Certainly not the prosecutor, he did his best to protect the perpetrator, Darren Wilson. McCullough needs to "Get the fuck out of the street".

[sabrina 1]

27. And hasn't it just been revealed that McCullough was raising funds for Wilson?? If that is true,

I think that not only is the entire process tainted beyond belief, but he should lose his law license.

[JEB]

31. This is hopeful, but it will get ugly soon.

http://www.commondreams.org/news/2014/11/26/systemic-injustice-condemned-ferguson-galvanizes-national-outrage

[sabrina 1]

33. Yes, I followed those protests on Twitter last night. Thanks for that link, there were apparently

protests in 170 cities and towns across the nation. It is hopeful, but more needs to be done, a whole lot more.

Wrt to the Prosecutor being tied to a fundraiser for his 'suspect', that too needs to be investigated. He is chairman of an Org that raises funds for cops apparently. That Org was behind the shirt campaign which raised nearly half a million dollars for Wilson.

The org. claims it did not profit from Wilson's defense fund, but their name appears on the original fundraising site. They say they do not intend to look into it further.

Great, so now it's up to the Feds to thoroughly investigate the entire process as well as the crime itself, imo.

[JEB]

34. Absolutely a conflict of interest.

Prosecutor fund raising for perp. That a very twisted sense of Justice.

[LanternWaste]

28. a district attorney could have a grand jury indict a bologna sandwich

"There's an old saying that a district attorney could have a grand jury indict a bologna sandwich," said defense attorney John W. Tunnell.

[TBF]

29. You can't fail if you don't even try. nt

[Rex]

30. I always thought a DA's job was to prosecute suspects.

I had no idea they could also defend said suspects.

Learn something new everyday.

[sabrina 1]

37. It depends on the 'suspect' is what I am learning.