How Robert McCulloch Indicted Himself
By: Will Bunch
Each and every minute felt like an hour. The first bulletin on Monday that the Ferguson grand jury had reached its decision -- and that it would be announced that night -- came around lunch time. All through the day, news anchors jumped back on CNN after every commercial break to declare breathlessly that word on the fate of Officer Darren Wilson was "just moments away!" As gray November skies turned a metallic black, Gov. Jay Nixon held a news conference to do nothing but voice his desire that reaction to this grand jury decision -- not knowing what it would be, of course -- would be respectful and tolerant.
Every few seconds, an overhead camera panned the crowd outside the City Hall in Ferguson, the suburb of St. Louis where an unarmed black teen named Mike Brown had been gunned down after a scuffle with Wilson on Aug. 9. And each time it looked like 50 to 100 more people had showed up -- tense, milling, waiting outdoors for hours on a chilly night to hear whether or not there would be justice for Brown's killing. The announcement was pushed back from 7 p.m. local time to 8 p.m., and then that hour came and TV cameras showed an empty podium for a dozen more minutes. Finally, St. Louis County D.A. Robert McCulloch emerged in his red power tie, brusque and arrogant, determined to get his brief and all-too-perfunctory words of concern for Brown's family to spin his version of the case -- and deliver the gut-punch that there would be no charges.
There were maybe 1,000 people massed outside the police station by then. Many wept and hugged each other, but their disappointment soon turned to anger. Brown's mother, Lesley McSpadden, burst into tears and started shrieking, while Brown's stepfather yelled, "Burn the bitch down." Within minutes, a police car was in flames and gunshots were echoing in the distance.
The American twin tragedies -- the abuse of a tainted justice system, the senseless destruction of a Missouri city -- that played out before a national audience was surely the result of what today's Internet might call too many cooks. There were so many missed moments when the situation could have been ratcheted down -- starting with a teenager's foolish decision to confront a cop and the cop's decision to fire his gun at that youth 12 times, knowing he was unarmed, and leading to a night with a couple of hundred knuckleheads who exploited a tragedy to loot and burn. But those bad decisions were in the heat of the moment.
But Robert McCulloch, the top law enforcement official in one of the nation's largest counties, was the master chef in Monday night's recipe for disaster. He had weeks to decide just exactly how he would release the eventual results of the grand jury probe. And he knew full well the most likely outcome was no indictment, because he had engineered it. He could have released the news earlier in the day, when many folks were still in work or school, or -- as happened famously in the O.J. Simpson murder trial -- he could have held the information overnight. Instead, he picked the moment when the largest number of protesters could gather, and react under the cover of deep darkness.
The announcement was just one of a number of crucial decisions by McCulloch that were either very odd, or maybe not odd at all after you consider his real objectives. Start in the early days of the crisis, when McCulloch -- from a family of police officers, whose father was murdered by a black man in the 1960s, who won office with the enthusiastic backing of the police union and and who has never once prosecuted a law-enforcement officer for excessive force -- joined with Nixon to resist any and all calls to remove himself from this case in favor of a fair and impartial special prosecutor.
Next came a series of McCulloch moves -- to dump mounds of evidence on the grand jury, to not seek a specific charge against Wilson, and to allow the supposed target of the investigation to tell his side of the story for four hours -- that all pointed in one direction, to guide the legal process to its predetermined outcome of no indictment.
Remember, Mike Brown's supporters wanted, in the end, one thing: equal justice, some kind of proof that young black lives matter. Instead, McCulloch determined that this case would be brought before the grand jury in a manner that NONE of the other hundreds of cases that he's prosecuted in St. Louis County have ever been handled. In other words, justice for Mike Brown was separate -- and highly unequal. I hope every defense attorney in St. Louis with a client under investigation demand that McCulloch treat it the same way he treated the case of Darren Wilson. Do you think McCulloch would be okay with that? And if not, how can you say that there was justice in this case?
The release of the supporting grand jury documents raises so many more questions than they answer. Lisa Bloom, a legal analyst for MSNBC, asked some hard-hitting ones online today. Why did prosecutors not cross-examine Wilson over some of the inconsistencies in the story he told to grand jurors? Why was the officer not grilled about the hospital report which found that after the shooting that he was "well-appearing, well-nourished, in no apparent distress." Or about inconsistent statements in how many times and in what manner he was punched by Brown, or Brown's final moves just before the killing?
McCulloch could have put some of these doubts to rest Monday night with a sober, respectful, balanced performance -- but he chose to show his true self to the world. The prosecutor was smug, arrogant, and -- in a massive irony -- he managed to "indict" just about everyone who wasn't named Darren Wilson. He lashed out at the media -- "the 24/7 news cycle and an insatiable appetite for something -- for anything to talk about" -- with no apologies for the war on the First Amendment that was waged in Ferguson, with 19 journalists arrested until Amnesty International finally arrived to monitor the human-rights violations. He lashed out at social media...because that's just what people do in 2014. And his words about Mike Brown -- a teenager who was shot and left on the hot asphalt for four-and-a-half hours -- left little doubt whom McCulloch really wanted to charge.
Afterwards, CNN legal analyst Jeffrey Toobin called McCulloch's performance "an extended whine" and "entirely inappropriate and embarrassing." I think Toobin was being polite. But yet the many deserved criticisms of McCulloch for his strange and unjust handling of the most high-profile case in America didn't get much air time on Monday night...because Ferguson was in flames by the time his whole, self-aggrandizing show was over, and TV cameras are drawn to fire.
But one possible answer to the question that loomed largest -- why announce the decision at 8 p.m.? -- is almost too disturbing to contemplate. Is it possible that McCulloch wanted every front page in America to show riots, and not linger on the injustice system in St. Louis County. "Remember: Authorities in Ferguson worked really hard over the last few months to make the story today one of disorder rather than injustice," Salon journalist Elias Isquith wrote yesterday. He nailed it. Remember the drumbeat of law-and-order stories -- Gov. Jay Nixon taking the extraordinary move of declaring a state of emergency a week before the announcement -- that stole the spotlight from how this story started...about social injustice, and policing in black communities? The white-hatted cops vs. the unruly/violent mob -- that's the storyline that people like Nixon and McCulloch feel most comfortable with, and so it's the story that they've steered for weeks.
Why bother? Look, I don't think the fate of Darren Wilson as a human being really means anything to the ruling class. At the end of the day, people like Bob McCulloch aren't protecting Wilson so much as the system that he stood for -- a system that has spent untold millions on creating police forces that resemble armies, that perpetuates an America of gated suburbs walled off from towns like Ferguson with their failing schools and failing labor markets, a nation where it's corporate patrons of politicians who get to write the rules. Ironically, their efforts may have failed. Monday night, hundreds of people took to the streets of every major U.S. city, to protest the injustice perpetuated by McCulloch & Co. Tonight, those numbers are in thousands -- and the protests show no sign of letting up.
In other words, the cynical, reckless scheme by McCulloch to provoke a reaction may have succeeded a little too well. That's one more irony in an unraveling that's been fraught with them. After all, the whole process in Ferguson was geared to produce no charges of all. And yet somehow, through his immoral actions, Bob McCulloch accidentally managed to indict himself.
Perhaps many of us are unfamiliar with Grand Jury procedures and requirements, but a little research does reveal that the Grand Jury McCulloch convened did not follow typical procedures that all Grand Juries follow. The basic purpose of a Grand Jury is to determine whether a prosecutor has sufficient evidence to bring charges against a potential defendant. But potential defendants are never invited to testify at Grand Juries. That makes a Grand Jury proceeding more like a trial but Grand Juries have no judges directing the proceedings nor do they involve attorneys for the defendant. Thus the protections of a jury trial are not present.