Richard Kuhns, JD, emeritus professor of law
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