Still Time for a Special Prosecutor

Richard Kuhns, JD, emeritus professor of lawKuhnsr4

A few years ago I was part of a group of prospective jurors for a criminal trial. In response to questions from the prosecutor and defense counsel, a number of the other white prospective jurors said that, all else being equal, they would resolve a conflict in testimony between a police officer and the defendant (should he choose to testify) in favor of the officer.

The prospective jurors’ instincts were understandable. They probably viewed the police as protectors and had had few, if any, bad dealings with the police. If they had gotten traffic tickets, the officers were probably polite. And, of course, they must have realized that the defendant facing a possible criminal conviction had a motive to lie. What these prospective jurors may not have known, however, is that the phenomenon of extensive police perjury has been well documented. Judges should and do disqualify for cause prospective jurors who express a predisposition to favor the credibility of police officers.

Members of the Darren Wilson grand jury may well have had the same predisposition to view police officers as credible witnesses. However, when they were first impaneled,  nobody expected that they would be hearing conflicting testimony of any kind. Rather, the expectation was that the prosecutors, relying heavily on police testimony, would present only one side of the case for the purpose of persuading the grand jurors to return an indictment. Thus, there was no reason to ask the grand jurors about their possible pro-police biases, much less to disqualify any juror who may have expressed such a bias.

The situation changed dramatically when Robert McCulloch decided to present “all” of the evidence in the Darren Wilson case to the same grand jury that had been hearing routine requests for indictments. As McCulloch well knew, the grand jurors would be considering conflicting evidence, and the grand jurors would have to make credibility assessments. Whatever pre-existing pro-police predispositions they had would inevitably come into play.

Moreover, through no fault of their own, the grand jurors’ experience in their preceding weeks of service inevitably contributed to the likelihood that they would have a pro-police bias. They had, after all, been regularly hearing police testimony that the prosecutors were asking them to believe. Indeed, it is likely that most of the witnesses before the grand jury had been police officers.

As if that were not enough, the transcripts released by McCulloch’s office demonstrate that his prosecutors contributed to a likely pro-police bias by the manner in which they questioned witnesses. In contrast to their treatment of some witnesses whose stories the prosecutors vigorously challenged, the prosecutors were extremely deferential to police officers, including Darren Wilson.

For example, Wilson clearly had been well coached by his attorneys. The words he used were carefully crafted to fit potential defenses. Yet, the prosecutors did nothing to challenge Wilson or suggest to the jurors that Wilson was, in effect, testifying from a script. Rather, the tacit message from the prosecutors, whether intended or not, was that Wilson, like the other officers who testified before the grand jury, deserved to be believed.

The prosecutors may well not have intended to convey that message. Indeed, their motivations may have been as innocent and certainly are as understandable as the possible pro-police bias of the grand jurors.

The prosecutors know and work with police officers on a regular basis. They rely upon them for testimony. And with respect to officers other than Wilson, much of the their testimony about the Wilson case was fairly routine – for example, describing physical evidence or recounting interviews with other witnesses. With respect to Wilson, the prosecutors must have realized that if there were an indictment, Wilson might well testify at the trial. They may have made a tactical decision to forgo giving Wilson a preview of how they could attack his credibility.

In short, neither the grand jurors nor perhaps the two prosecutors who presented the evidence to the grand jury can be faulted for having or exhibiting a pro-police bias. The responsibility for grand jury’s pro-police bias lies squarely at the feet of Robert McCulloch, who made the decision to have his prosecutors present the Wilson case to an already sitting grand jury that would hear “all” of the evidence.

Since McCulloch was unwilling to have his office seek an indictment, the pro-police bias issue could have been substantially mitigated by the appointment of a special prosecutor and a new grand jury to hear the Wilson case. Those options still remain. It is important to restore both fairness and the appearance of fairness to the grand jury process. It is time to act.

Read article in St. Louis American

  • John Reynolds

    What complete nonsense. He’s basically saying the grand jurors were simply too stupid to weigh the evidence. This is the kind of academic rambling that has left academia on the outside of relevance looking in!

    • Tracy Collins

      No, that’s not what he said. The criticism has never been about the members of the grand jury, it is about the process itself. And this isn’t just the opinion of “academia.” Link to the editorial board of the NY Times this week saying pretty much the same thing: http://www.nytimes.com/2014/12/09/opinion/a-crisis-of-confidence-in-prosecutors.html?_r=0

      There’s nothing particularly patriotic or noble (or intellectually rigorous) about blindly trusting the status quo.

      • John Reynolds

        But Tracy, the process is tried and true! Are we ready to trash the Constitution here because twelve people weighed ALL the evidence? What if they had weighed only the pro-Wilson witnesses? Or what if they had weighed only the pro-Brown witnesses? I am completely confused why a law professor would write such things. What in the world is he talking about…a pro-police bias? Isn’t that the same as a pro-law and order bias? A pro-justice bias? What does he want, a grand jury of people who announce that they hate the police? Doesn’t a anti-police bias cause problems as well? And of course Wilson was coached! He has an attorney. Since the entire black community is ready to sue him and burn his home, doesn’t it make sense that he would be coached? Do you think Dorian Johnson was coached? How about the female witness who was all over television? Of course they were! To suggest that a prosecutor should tell the grand jurors that a witness has been coached, without any evidence of that, tells me that the good professor has never been in a grand jury. He doesn’t want to restore fairness to the process…he wants to keep trying other options until Wilson is indicted. Even if he was, there is no jury anywhere that would convict him. Why? Because he did nothing wrong!! And the prosecutors challenged Dorian Johnson and others because their statements were inconsistent with the physical evidence. This entire article is nonsense, and should be discounted in its entirety. We can talk about problems with the system, but this pro-police bias isn’t one of them.

        • Tracy Collins

          Slavery was legal. Female disenfranchisement was legal. Jim Crow was legal. All “tried and true.” Apparently, torture and civilian wiretapping are legal now too. If you’re looking to the government as a moral or ethical compass, you’ll be frequently disappointed.

          Since when has it been un-American to challenge our institutions? The grand jury process seems to work fine most of the time–except when it doesn’t. So why isn’t that worth discussing? If the “academics” from our best universities, the editorial boards of our newspapers of record and our own department of justice have questions, why shouldn’t they ask them? Who else would ask such questions?

          What kind of systems do we have if they cannot stand up to scrutiny?

          Smart people seem to think that there may be a flaw in the system that requires a prosecutor to seek charges against the law enforcement officers who are part of his own team. What are the motives of those who say we shouldn’t scrutinize that a bit?

          • John Reynolds

            What’s broken about the grand jury process?? I sure don’t see anything in this case that illustrates anything is broken. The pro-police bias argument is complete nonsense. First they want the grand jury to hear everything, but when that doesn’t work, then they want the grand jury to only hear some things. Which is it?? How about the federal grand jury? I can guarantee you right now that there will be no civil rights indictment. How could there be? Wilson didn’t do anything wrong. When they say no indictment, what then? The federal grand jury is broken too? People need to get over it and move on. There never was a case here. I’m just glad a very fine police officer didn’t have to lose his life.

          • Tracy Collins

            John, I’m going to assume based on our past history that these multiple questions are all rhetorical and that you’re not really interested in answers to any of them. You’ll forgive the rest of us for trying to actually find answers, which will require inquiry, discussion, and questioning of past assumptions. If everything is as sound as you assert then it should hold up to scrutiny. If not–well, then you were wrong.

          • John Reynolds

            Answers to what?? This is what is driving me a little mad. This forum was begun in honor of Michael Brown! Why?? To what end?? He was a criminal thug! What answers regarding the grand jury process? It worked just the way it should have worked. Why are we even discussing any of this? I only got on this forum to keep it honest. Actually, I think in your mind you have done the same, and I respect that. But what sickens me honestly is when a bunch of academics disconnected from the real world spew the esoteric nonsense I have read here. The Michael Brown crowd ended up making complete fools of themselves because they were empowered by sympathetic white people who wanted to feel good about themselves. The vast majority of white people ended up just shaking their heads in disgust at what they watched on television. Black America has set back its cause decades because of Ferguson. They march to the command of a complete fraudulent fool named Al Sharpton. They burn and loot their own businesses like raging animals. They exploit each other. And today we are right back to no one caring, and white people caring even less. The Jesse Jacksons and Al Sharptons of the world have done such a disservice to the Black community by teaching them to be victims. I fear that it is beyond repair at this point. Thank god for the good police officers, both white and black, who risk their lives daily to keep segments of this country from slipping into anarchy!

          • HateCliques

            People like you are indeed one of the core reasons why this community needs to look inwards deeply. You came in here to keep it “honest”? Your honesty is a bit sickening – you think Michael Brown is a criminal thug, and the black people were “empowered” by white people who wanted to feel good about themselves. “They” are raging animals who exploit each other?

            No, don’t hold back. What do you really think of black people? Yes, we know your type. You sir, are a big part of this problem.

          • John Reynolds

            Um yes…I pretty much said what I think. If one of them had to die that day, I’m glad it was Michael Brown and not Darren Wilson. Sorry…

  • Daniel Dallas

    At the end of the day, nobody wins. So many people are weighing in on the various social media platforms that it is not even funny. The irony is that most of these people who post on these platforms probably did not pay attention to their Civics class in Grades 6 – 12. Therefore, their knowledge of the United States Constitution is minimal at best!!! The other part of this faction of people are just simply electing to be narrow minded and are going to have their own opinion on the matter. The sad thing is that if it is their son who was “shot in self-defense”, then they would want justice for their child. But because this young man does not “look” like them, it is okay. I, for one, am grateful that over the years, I have had professors, pastors and friends who don’t look like me, yet the see me as a person based on my individuality vs. my pigmentation. I pray for each and everyone be you pro Michael Brown or pro Officer Wilson. Because at the end of the day, some parents lost their son, and an officer lost his career.

    • John Reynolds

      And your point is???