Ferguson: The Strange Case of the Prosecutor Who Didn’t Prosecute by Thomas Martin Saturday


“Is there any point to which you would wish to draw my attention?”
“To the curious incident of the dog in the night-time.”
“The dog did nothing in the night-time.”
“That was the curious incident,” remarked Sherlock Holmes.

–“Silver Blaze,” From Memoirs of Sherlock Holmes

St. Louis County Prosecuting Attorney Bob McCulloch announced last night that the Grand Jury in the Michael Brown case had returned no indictments on a series of charges laid against Police Officer Darren Wilson. Then, predictably, Ferguson erupted in unrest and fire.

While the nation continues to focus on the violence in Ferguson after the announcement on the decision of the grand Jury, McCulloch by an elegant sleight of hand had given the appearance of having brought a case before that grand jury, when in point of fact he had not done so in all these months since the death of young Brown.

The word “prosecute” in a legal sense means to “to bring suit against for redress of wrong or punishment of crime,” and to “seek to enforce or obtains as a claim or right, by legal process.” When prosecutors “bring a case” or “seek an indictment” or indictments, they do so actively, and in a coherent fashion designed to persuade or sway that jury into stating that there is probable cause for a crime to have been committed, and approve any indictments argued for by such a prosecutor.

The problem is that McCulloch did not argue his case at all. He simply placed all the information he had in front of the grand jury without being an advocate for the victim and the victim’s family, and holding the person who committed such a crime accountable via a criminal prosecution in a court of law.

If the St. Louis County prosecuting attorney did anything, it was to inform that jury of exculpatory evidence favoring both sides in the case. This is akin to a defense attorney constantly pointing out what were the most effective points made by the government against his client and explaining why that evidence is so damaging to his defense of that client.

This is absurd. This is not justice. Bob McCulloch deliberately and with forethought intentionally sandbagged his own prosecution of the case. It is becoming clear from the prosecuting attorney’s own ranting defense of the injustice he’s presided over for the last three months that Police Officer Darren Wilson’s testimony received great weight in characterizing Brown as “looking like a Demon.” That Brown was the aggressor throughout the incident. After Brown ran from the police car Wilson was sitting in, Wilson did not close the window, or use the vehicle, a Chevy Tahoe SUV as a measure of protection.

If Wilson’s own account is to be believed, and it now is, he stupidly put himself in greater danger by getting out of the police SUV, and pursuing Brown for a number of feet, and firing several shots at Brown. Then, according to Wilson, Brown stopped a moment, turned, and charged in a big bull rush at Officer Wilson. To accept this testimony as credible, a grand jury, or a regular jury in a criminal court would have to conclude that both Brown and Wilson acted completely irrationally; Brown attacking an armed police officer after being shot at and pursued with more shots fired at him while unarmed, and Wilson putting himself in even greater danger when fearing for his life.

Logically, it would be far more likely that Wilson did not fear for his life any longer, and became the distinct aggressor with a gun, against an unarmed, fleeing Brown. That portion of the incident has never been explained to the public at all. It is the key point in the entire case. This dog in the night time is quiet too.

Instead of getting a vigorous restatement of the prosecution’s argument before the grand jury, McCulloch launched into an extended discussion of just why Michael Brown was a felon, and deserved to be neutralized by the application of a great amount of deadly force. As I sat and listened carefully to McCulloch’s timeline for the incident it read and was heard as a litany of the bad conduct of Michael Brown that justified his murder by Police Officer Darren Wilson.

In effect, the indictment sought by the county prosecuting attorney was, in truth, an indictment of the victim. Notably, McCulloch has had little or no contact with the victim’s family, when most prosecutors would visit with them and inform them of the progress of the indictment’s sought.

The greatest decision in the entire case was not to have McCulloch recuse himself from it and seek a special prosecutor whose father was not killed in the line of duty as a police officer in McCulloch’s youth. No one blames McCulloch for having distinct biases in favor of the police. As a prosecutor he works directly with them. That is a natural relationship. And, no feeling human being could avoid not being traumatized as a child, when his father did not come home from work one day.

Missouri Governor Jay Nixon made a fatal mistake in not removing McCulloch and putting attorneys from the State Attorney General’s Office or a completely independent prosecutor onto the case. Michael Brown, and his parents and family and friends deserved far better than they got. The community loudly, and in the streets bodily called for weeks on end to have McCulloch recuse himself. Nobody but African-American government officials from St. Louis County were listening.

The Holy Bible advises us that we reap what we sow. Nixon, McCulloch, and much of white Missouri and white America sowed even greater mistrust of the justice system by acting or in this case not acting, that a grand jury decision not to indict Darren Wilson would unleash despair, anger and violence.

Don’t blame the grand jurors. They did their duty. But they were significantly handicapped, cut off at the knees by not getting a focused and strong theory of the case for returning an indictment or indictments. They had enormous amounts of material thrown in their laps. 70 hours of testimony, and no prosecutor to give them any real reason to indict. What they got, if anything, was an indictment of the victim.

This is not justice. It is rank, heartless, and hypocritical injustice. The people of Ferguson in the black community have been insulted and ignored for decades. They are constantly harassed by the very police that they pay to serve them, not terrorize them.

There remains a civil suit which the family, no doubt, will bring in the wrongful death of their son, Michael Brown. There is the U.S. Justice Department Federal investigation into police practices, most of them unjust and unlawful against the black population of Ferguson and the lack of real representation in the community that would give black residents real power to help make decisions that vitally affect their own lives, and for the moment, so many of their deaths.

Let us not blame the black voters or citizens of Ferguson for not voting and holding their local officials accountable in the past. This will and must change. It will be the black community of Ferguson that does this from next spring, until elections come up in 2015 and 2016. But the lack of voter participation here is not the result of bad citizenship. It is the impact of a long history of injustice, abuse, and clear lack of an adequate means of holding their rightful influence over the government which governs them.

The result of the grand jury investigation, and the almost criminal lack of urgency to hold Wilson accountable have merely confirmed yet again that the American injustice system does not work for people of color, the poor, the elderly and sick; the least of these so prominently mentioned in the teachings of Jesus of Nazareth.

Fundamental social, legal, and cultural change must refashion our nation so that people like the black community in Ferguson will be able for the first time to say they themselves are part of the ruling group and not marginalized with a mere few black representatives who themselves are not heeded when they have something to say.

Note, Struggles for Justice did NOT choose to use a photo of rioters and burning buildings. While the nation focuses on that the real lawlessness and injustice was being perpetrated over at the St. Louis County Building by Bob McCulloch. Magicians would be proud.

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