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Tuesday, November 25, 2014

The process by which a 12-member grand jury decided against any criminal indictment of Ferguson, Missouri, white police officer Darren Wilson in the killing of black teenager Michael Brown was one of the law’s finest hours. The violence and vandalism that ensued by a minority of protestors was reprehensible.

On Aug. 12, Mr. Brown was shot and killed in an altercation with Mr. Wilson. Eight days later, a St. Louis County grand jury began hearing evidence to determine whether a criminal indictment based on probable cause was warranted. The grand jury was not a monochromatic body characteristic of Jim Crow. It was composed of three blacks and nine whites, of whom seven were men and five were women. That diversity ensured the tragic incident would be evaluated by a rich array of social or cultural perspectives.


The grand jury received evidence and deliberated for more than three months. There has been no allegation that the prosecuting attorney, Robert McCulloch,  shortchanged incriminating in favor of exculpatory evidence. None of Mr. Brown’s advocates has accused him of seeking to steer the investigation against an indictment. Witnesses had full opportunities to tell their entire stories. They are free to speak publicly about their grand jury testimony.

Mr. McCulloch intends to ask the St. Louis Circuit Court to release to the public all the evidence before the grand jury despite customary secrecy to strengthen public confidence in its decision not to indict.

This is due process at its finest, in contrast to the vigilante justice for which some protestors were clamoring.

Mr. Brown’s advocates exercised their First Amendment right to protest and seek redress of grievances through lawful channels. A few police officers over-reacted, but the vast majority acted professionally despite the stress and passions. The riots and looting that occurred on Aug. 10, before the investigation of the Mr. Brown’s death had even begun, assaulted the presumption of innocence which is a bedrock of civilization.

At the grand jury stage of a criminal case, procedures work against the accused. He cannot call witnesses in his defense. He cannot confront or cross-examine his accusers. Juror unanimity is not required to indict. The burden of proof is not beyond a reasonable doubt, but the much lower standard of probable cause to believe a crime has been committed. In other words, the odds were tilted against Mr. Wilson, not in his favor.

The grand jury’s decision leaves open alternative avenues of redress. The U.S. Department of Justice headed by black Attorney General Eric Holder is investigating whether Mr. Wilson committed a federal civil rights crime. The department is also investigating whether the Ferguson police department exhibits a pattern or practice of civil rights violations that justifies reforms. Finally, Mr. Brown’s family may file a civil wrongful death suit seeking damages against Mr. Wilson, just as the families of Nicole Simpson and Ronald Goldman sued O.J. Simpson for wrongful death and obtained a verdict of more than $30 million in damages after his acquittal of murder charges.

In sum, the investigation of Mr. Brown’s killing by Mr. Wilson has been meticulously thorough and fair. It has even attracted the attention and involvement of President Obama. Voices of reason on both sides of the case have been predominant.

Mr. Brown’s death was tragic. His family deserves the utmost of condolences. But these facts do not dispute that the process of investigating the tragedy has set a standard to which the wise and just may repair and of which the nation should be proud.

For more information on Bruce Fein, visit brucefeinlaw.


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