As many of us continue to grapple with the gut-wrenching news out of Ferguson, there is the prevailing sense of confusion surrounding what might have happened in the grand jury. For as much as Ferguson prosecutor Bob McCullogh did to (unsuccessfully) make news of the outcome seem more palatable, he didn't actually explain much, which only leaves folks with an even greater sense of frustration in trying to make sense of it all. The now released case file as thick as the propagandCh that has been shoveled our way since August, and it isn't long before every bit of that evidence is thoroughly examined, analyzed, and discussed by the public. But, for now, here are 5 early takeaways from the decision of the Ferguson grand jury.
1. We will likely never know what actually happened. The grand jury is a secret proceeding and there are myriad procedural safeguards to ensure both the integrity of the process as well as to protect its secrecy. It is unlikely that we will learn anything more about the actual jurors themselves or how the discussion played out, unless a juror talks about the case–which would be against the law. As we saw during the question portion of McCullogh's announcement, there wont be any information on which jurors voted which way or which facts were ultimately weighed more heavily than others. Jury psychology is one of the most well-studied fields because of its value to attorneys and despite a plethora of research on the topic, it remains largely an enigma. The grand jury does not require that the prosecutor prove their case beyond a reasonable doubt; the standard here is significantly lower and requires a showing of probable cause. Additionally, it also doesn't require a unanimous vote. A simple majority will decide whether an indictment is filed against a defendant. It is virtually impossible to determine what 12 strangers were thinking about the mountain of evidence–both scientific/forensic/physical and testimonial–that was put before them over the course of the grand jury presentation.
2. Prior statements hurt. I previously wrote that the eye witnesses to Michael Brown's death would do the most to help his case by simply being quiet months ago instead of succumbing to the natural human desire of telling one's story. McCullough made multiple mentions of the inconsistent statements from witnesses, to the point that he almost seemed to intentionally downplay the strength and credibility of his office's own presentation. In all of his references to prior inconsistent statements from witnesses, the thing that struck me was his comment that there were additional witnesses that the prosecutors office in conjunction with the FBI were unable to locate. This begs the question whether those witnesses would have helped corroborate other aspects of the grand jury presentation. In any event, making one statement to a camera phone or for a YouTube upload in August and then later varying that statement just slightly could be enough to completely destroy a witnesses' credibility in the eyes of jurors who may already see the witness as suspect to begin with. The devil is always in the details, and by changing a small aspect of the story, there may have been room for doubt so great that the witness(es) simply became unbelievable. The solution? Don't make a statement/comment until it's time.
3. Bob McCullogh is who we thought he was. There was a significant amount of angst and consternation that local residents expressed when it was announced that Bob McCullogh's office would keep the case and attempt to indict Wilson. McCullough has a reputation for being very pro-police and some familiar with his tenure as the top law enforcement official in Ferguson my label him a flat out racist. When he spoke at yesterday's press conference, one thing was sure regarding his thought process: Blame the news cycle. Blame social media. Blame the rumor mill. BUT, do not blame Darren Wilson. McCullough's "instruction" that protestors "continue the conversation" seemed almost tongue-in-cheek in that the conversation has been going on in Ferguson for years before Michael Brown lost his life. It isn't that the conversation hasn't been happening; it's that people like McCullough have made no effort to listen.
4. When you get a notice for jury duty, show up. 9 White, 3 Black. All I can say. We didn't like the jury makeup against George Zimmerman or against Michael Dunn yet, when many in our community are called to answer our civic duty we show up late and begrudgingly, looking for ways to avoid serving, or we simply don't go at all. Newsflash: your jury notice is not going to tell you that you could be sitting on the next case where an unarmed Black boy is killed by police. But, do you want to be the one staring at the tv after another acquittal wondering aloud what sort of jury could have let a killer walk? Didn't think you did. So, show up. (And, be on time, too.)
5. So, what now? It is unlikely that the Brown family will appeal the grand jury verdict and they should not, in my opinion. Absent a good faith basis for an accusation of prosecutorial misconduct or abuse, or some other good faith basis dealing with the integrity of the process itself, it remains unlikely that any appeal of the grand jury's decision would be a worthwhile endeavor. Grand jury appeals are almost never on the merits of the case and usually deal with challenges to the procedure. What the family is likely to do, and should, is to press forward with their civil actions against both Darren Wilson individually as well as the City of Ferguson and its police department. The no true bill decision is an unfortunate blow, but does not have to be a death knell. The standard of proof for winning that type of case is lower, although given the demographic makeup of Ferguson, MO and what we have seen in terms of who does and does not come to sit on juries, this could still be a problem.
Justice denied…or simply 'Just us,' denied…again.
Charles F. Coleman Jr. is a former Kings (Brooklyn) NY prosecutor and federal civil rights trial attorney. Follow him on Twitter @CFColemanJr.