One question explains why what happened in Ferguson isn't justice

By Kyle Whitmire

I called a few of my lawyer friends to pick their brains for something original or thoughtful to say about Ferguson. At this point, it seems like everything has been said and played on repeat.

The most interesting thing I came away with was this - the prosecutors thought the St. Louis County Prosecuting Attorney Robert McCulloch did the right thing in how he handled the grand jury there, while my defense lawyer pals all said he blew it.

In the press conference Monday night, you could hear it. McCulloch gave every reason not to prosecute Darren Wilson - eyewitness testimony was inconsistent and conflicting, the physical evidence supported Wilson's version of events, and the media, the media, the media. Ultimately, the grand jurors there, after having reviewed all of the evidence, decided not to prosecute Wilson.

But here's the thing - the grand jurors were presented with all the evidence. While on the face of it that might seem fair, that's hardly how the system works for anybody else. The job of a grand jury is to establish probable cause, and the burden of proof for that is low - lower than the burden of proof in a civil trial, much less a criminal trial.

It's a constant refrain among defense lawyers that prosecutors could indict a ham sandwich if they wanted to. The grand jury is not meant to be fair and is an inherently biased construct - for the most part, it's prosecutors who decide which witnesses to call and what evidence to present. There's no judge present, and no cross-examination. In short, it's not a public trial by jury.

But that's what McCulloch tried to fashion this one to be.

As one of my prosecutor friends said to me, if you can't get probable cause after putting all the evidence out there, how are you going to get proof beyond a reasonable doubt in a trial? When you look at the conflicting testimony, the exculpatory evidence, the tendency of the public to trust police officers over someone who just committed a crime on video tape - it all adds up to a defense lawyer's dream.

It's hard to blame McCulloch for trying to kill this baby in its crib before he had to raise it. It's understandable.

But wrong.

Birmingham defense lawyer Hube Dodd said that, like in war, truth was a casualty in Ferguson.

"What this means is that we'll never get to the truth of what happened," Dodd said. "Now the truth is obscured by everybody asserting their agendas, from the prosecutor to the police to the protestors and the media, too."

A trial is about getting to the truth, he said, and that's in the public interest.

Tommy Spina, another Birmingham defense lawyer, concurred.

"I believe that a grand jury was used by the DA to essentially have a majority of jurors determine guilt or innocence, without any rules of evidence nor any cross examination of the evidence, using a probable cause standard of proof," Spina said. "The cause should have been charged and the evidence presented to a jury in a public trial subject to cross examination where a jury could determine unanimously beyond a reasonable doubt, the highest standard of proof, the guilt or innocence of the accused."

Many others have said the same things since Monday night, and I thought at first my quest for an original thought had hit a dead end, at least until I realized I'd never asked any of these questions before.

And why?

Because I never had to. Because this isn't the way the system usually works.

Ask yourself this: Had Michael Brown been the one to kill Wilson, would the prosecutor have presented both sides of the case to the grand jury?

There's just no way that ever would have happened, and therein is the proof that something different happened here - that justice isn't blind, and in fact, it's not even justice.

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