Richard Kuhns, JD, Professor of Law Emeritus
In the commentary “WU law school works to help the community” (St. Louis Post Dispatch, Nov. 14), Washington University Law School Dean Nancy Staudt stated that “we must welcome and celebrate diversity of opinion.” Her call to celebrate diversity of opinion is belied by a public statement she made only a week earlier.
In an email to the entire law school community, Dean Staudt, on behalf of the school, announced as settled one of the most controversial aspects of the response to Michael Brown’s killing. “There is every reason,” she declared, “to trust the (grand jury) process.”
The reasons Dean Staudt cited for trusting the grand jury process — that the grand jurors are representatives of St. Louis County and that they had been hearing cases well before Darren Wilson killed Michael Brown — may well be, and I believe are, reasons for not trusting that process.
The grand jurors are predominantly white; and the structural racism in St. Louis County, which is largely hidden from most white residents, is probably as bad as, if not worse than, structural racism anyplace else in the country. Under these circumstances, it would be reasonable to assume that at least some if not most grand jurors may have a bias — not necessarily a conscious bias but just a way of looking at the world — that might lead them to evaluate what happened in a manner favorable to Darren Wilson.
This possibility may well be exacerbated by the grand jurors’ perceptions of the two primary actors, Darren Wilson and Michael Brown. One would expect that Wilson probably made a good impression when he testified before the grand jury. If there were a risk that that would not be the case, his attorneys presumably would have kept him from testifying. On the other hand, the tape of the convenience story robbery (which the jurors almost certainly saw on television even it weren’t presented as evidence) conveys a negative image of Brown.
These pictures of Wilson and Brown are woefully incomplete and, in any event, of only very slight relevance to assessing what actually happened during the Wilson/Brown encounter. Nonetheless, there’s a possibility — I would guess a rather strong possibility — that they have had a disproportionate impact on the grand jurors.
The work that the grand jury had been doing before Wilson killed Brown was presumably of the traditional type: The prosecutor would present evidence with a view toward getting an indictment. By contrast, with respect to Wilson, Robert McCulloch has said that the grand jury is being given “all” of the evidence so that it can decide whether to indict without any recommendation from the prosecutor. This presents at least two potential problems.
First, the unique approach to this case inevitably sends a message to the grand jurors; and since the consistent prior message presumably was “you should indict,” the message of the new approach may be well be “don’t indict.” The prosecutors may have been able to substantially alleviate this problem by offering a plausible explanation to the grand jury for their new approach. But have they tried to offer such an explanation? And if so, how effective were they? Knowing the answers to these questions is important for assessing the extend to which one should put trust in the grand jury process; and, at least so far, we don’t know.
Second, presenting “all” of the evidence to the grand jury is not a simple task. For example, how thorough are the prosecutors being in exploring varying inferences that can be drawn from physical evidence? To what extent are the prosecutors using competing experts to explore nuances of the autopsy reports? To what extent, if at all, are the prosecutors with instructions or evidence trying to anticipate and compensate for the grand jurors’ likely predispositions?
Of course, we don’t know the answers to these questions either, but we do know that prosecutors are advocates and that presenting “all” of the evidence is not their normal role. Thus, it seems reasonable to wonder whether they’re very good it. And if they aren’t, that’s another reason for distrusting the grand jury process.
Finally, there is the overarching problem of the appearance of fairness. Many people claimed from the outset that McCulloch and his office couldn’t be fair. Although both McCulloch’s personal history and some of his early statements about this case seem to support that view, I’ve been an agnostic on the question. Maybe he can be fair. However, given the widespread, understandable distrust of McCulloch, especially in the black community, and the racially charged nature of just about everything related to the case, I can’t imagine how he — and by extension his prosecutors and the grand jurors, who are inevitably influenced by his prosecutors — can begin to satisfy the appearance of fairness.
As Justice Frankfurter said in Offutt v. United States, “Justice must satisfy the appearance of justice.” And by the same token (if it is not a complete redundancy), fairness must satisfy the appearance of fairness. Proclaiming trust in the grand jury process completely ignores this critical component of fairness.
Read article in St. Louis Dispatch