With all the charges by commentators that St. Louis County Prosecutor Robert McCulloch “sandbagged” the grand jury presentation on the shooting of Michael Brown in Ferguson, Mo., it is easy to overlook the pretty astounding fact that we, the public, were given the transcripts and evidence in the first place. We should hope that district attorneys across the country will follow McCulloch's lead in two important procedural respects:
- make full-evidence presentations to grand juries in controversial police shootings, even when the DA would personally choose not to charge; and
- promptly release to the public the full grand jury proceedings in the event of a vote not to charge.
That sort of “Ferguson effect” could be a big part of the “incredible change” that Michael Brown's father hoped his son's death might bring about.
It is arguable that the Brown case got the most thorough, timely and transparent investigation of any police shooting in recent memory. And isn't that a good thing, for progressives interested in police reform?
One of the biggest impediments to reform of use-of-force policies is reflexive secrecy. In a typical case, the investigation of a shooting is done internally by the police department, and the evidence is never released publicly. Was the investigation thorough? Did the investigators talk to all the witnesses? What did the forensic evidence look like?
In most cases, it's hard to tell: the public either hears nothing, or gets only the bits the police department chooses to release.
We average around 400 killings a year classified by the FBI as “justifiable homicides by law enforcement.” Of those, how many get a three-month comprehensive grand-jury investigation with dozens of witnesses and a thousand pages of testimony? And most importantly, how many get a full and prompt public release of all the evidence? The answer is pretty close to zero.
But the whole world can see the evidence and read the transcripts from the Ferguson investigation. Unlike virtually every other controversial police shooting that I can recall, there are no secrets remaining about what happened. All the witness statements and all the forensic evidence are out in the open. And it wasn't some anonymous government official making the final call: it was twelve St. Louis County citizens.
I have worked on excessive-force cases from both sides, and I am a longtime advocate for constitutional policing reforms, and I think that giving the Ferguson treatment to every police shooting would be an enormous step forward.
For example, here in Los Angeles, the police department conducts an internal use-of-force investigation for every shooting or use of potentially deadly force. There's a whole division of detectives devoted solely to these investigations.
But the reports never, ever become public. The department fights tooth and nail to keep them secret, and even when courts order their disclosure to plaintiffs in civil rights suits, the city requests—and gets—protective orders forbidding public disclosure by plaintiffs or their lawyers, and sealing any court filings revealing the reports' contents.
This sort of secrecy is virtually ubiquitous, and it's generally endorsed by the courts. I am not a fan of this line of case law; it seems to me that a public-agency report, about what a public employee did in the course of his duties, should be available to the public.
But here's where Ferguson could really lead to systemic change. If you recall, the Ferguson case started out following the usual pattern. The police department refused to release the officer's name or provide any details about what had happened; they wouldn't even confirm how many shots had been fired.
But because of the public outcry and pressure, we got an investigation that was exhaustive, and truly unprecedented in its transparency. Imagine if it were standard practice for DAs to convene a full grand jury investigation in controversial police shootings, present the grand jurors with “everything,” as McCulloch did, and let the citizens decide.
I know the rejoinder here: Wasn't it McCulloch's job to just lead the grand jury to an indictment? Isn't it his job to present only a narrow slice of inculpatory evidence?
The answer is: No. It is true that in most cases, the grand jury returns the indictment the prosecutor asks for. But this was not most cases.
Take the two main criticisms. First, McCulloch let Officer Wilson come and testify. Wasn't that “sandbagging”? Not at all. In the federal Department of Justice, where I worked, the rule is that prosecutors should let a target testify if the target wishes to. (For those curious, you can browse the U.S. Attorney's Manual, the rulebook for federal prosecutors. This rule is at USAM 9-11.152.)
Second, what about all the exculpatory evidence that McCulloch let the grand jurors see? Shouldn't he have only showed the jurors the evidence that indicated guilt, and left the exculpatory material out?
No! People really need to stop saying this. In fact, prosecutors have an ethical obligation to present exculpatory evidence that they know about.
Here's the language from the Manual (USAM 9-11.233):
“When a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.”
Now, I know McCulloch isn't bound by the U.S. Attorney's Manual. He's an independent elected official and doesn't have to answer to the President or the Attorney General. And I know that the Supreme Court has held that failure to present exculpatory evidence to the grand jury is not per se grounds for dismissal of an otherwise valid indictment. (That's United States v. Williams, 112 S.Ct. 1735 (1992).) But that is not the point.
The point is that critics who say McCulloch should have just “led the grand jury to an indictment” owe us an explanation of exactly what evidence he should have put on and what he should have left out. Should McCulloch have withheld all the forensic evidence and put on only Dorian Johnson? That might have gotten him an indictment, but it would have been unethical, unprofessional and, in my opinion, grounds for bar discipline.
It's just not even remotely true that in a case, like this one, in which the forensic evidence was exculpatory, a prosecutor could ethically withhold it.
My guess is that McCulloch saw the forensic evidence and read the witness interviews and decided he didn't think there was a basis to charge Wilson. But because the case was so politically charged and so high-profile, he didn't want to just decline. So he decided to present the whole package to a grand jury and let them vote.
To my mind, that's not cowardice or sandbagging (but see my comments below); that's a responsible choice by an elected official, and a good model for other DAs.
Regardless of the outcomes of the votes, it would be a huge step forward for constitutional policing if more police homicides were handled this way. It would be a step forward for transparency, a step forward for citizen oversight, and a step toward the return of the historic function of the grand jury as a genuine independent democratic actor.
Some Additional Comments on Brown (and Garner)
- While the substantive legal questions raised by the death of Brown in Ferguson, and of Eric Garner in New York – both at the hands of police during street encounters over minor offenses—are not the focus of this essay, I think that if I am going to comment on the procedure, I owe readers at least a summary of my views on the substance. So:I think the Garner case was chargeable as negligent homicide. I think the Brown case was borderline, and chargeable as involuntary manslaughter at most. Happy to explain further, but not here.
- I am troubled by the fact that the Ferguson ADAs gave the grand jury a “deadly force is permissible to prevent escape” instruction at the outset of the proceedings, in direct contravention of Tennessee v. Garner, and then retracted it two months later, without giving a proper Garner instruction, and without answering the grand jurors' questions about what the actual state of the law is. (The transcripts are widely available online. See Sep. 16, p.5, lines 8-14, and November 21, p. 134, lines 15-19.)
The ADAs said that they had “discovered” while “doing our research” that Garner invalidated their escape instruction. I would like some clarification of that statement.
A prosecutor in a police shooting case not being aware of Garner is like a Planned Parenthood lawyer in an abortion-rights case not being aware of Roe v. Wade. Garner is the defining constitutional case on police use of deadly force. It says that the Constitution does not permit police to use deadly force simply to prevent the escape a fleeing felon. It was decided in 1985. I cannot explain why the ADAs gave the incorrect instruction in the first place, or why they did not provide a correct instruction when they retracted the incorrect one.
Nonetheless, I am inclined to agree that the error was probably not dispositive because there was no claim that Wilson shot Brown to prevent his escape.
Caleb Mason is an attorney at Brown, White and Newhouse in Los Angeles, and a former federal prosecutor. He welcomes readers' comments.