Darren Wilson will not be criminally charged with the murder of Michael Brown. The decision, which came after 100 days of grand jury deliberation, represents an unhappy intersection of legal high jumps, racial politics, and raw emotion.

Shawn Semmler
Shawn Semmler

And although the issue has yet to see its day in federal court, it’s left many people questioning their faith in the justice system—none with a more reasoned perspective than lawyers who have seen this system at work.

Grand juries don’t prove the guilt of any parties. Instead they seek to find if the there should be an indictment for a serious crime; they are looking for probable cause that a crime was committed, making the burden much lower than that of petit juries. They are not screened for bias, they require only 9 (of 12) to make a decision, and hearsay evidence is allowed. As Ben Casselman notes for FiveThirtyEight:

Grand juries nearly always decide to indict.

Or at least, they nearly always do so in cases that don’t involve police officers.

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

Which is exactly why the Darren Wilson decision is so unusual, though it wasn’t unexpected. Scott Greenfield, New York criminal defense attorney and the blogger behind Simple Justice, wrote a post titled “The Ferguson Lie,” where he states that if prosecuting attorney Bob McCulloch had wanted Wilson charged he could’ve done it hours after the incident, but purposefully chose not to. In fact, by “presenting all the evidence,” as McCulloch touted, he was intentionally ruining the chance of indictment:

The description of what happened with the grand jury, how it heard all the evidence, how it will be transparent, is intended to appease our innate sense of fairness. Americans love things that appear fair, even if we don’t quite understand what actual fairness means. This sounds as if it was done as well, as fairly, as it could possibly be done.  But it’s a lie.

“All the evidence” is a phrase that applies to a trial.  A trial is a procedure that happens in an open courtroom, where adversaries zealously present their case and challenge the other side’s case.  It is transparent because we can watch it unfold, develop, happen before our eyes. We hear the questions and answers, the objections and rulings. We hear the request to admit evidence and the voir dire and challenge to its admission.  We hear the opening arguments and summations…

That it ended without the prosecutor asking the grand jury for an indictment is unheard of. By this omission, it ended with the prosecutor telling the grand jury that a close call goes to the defendant. It ended as it was meant to end, as the foregone conclusion demanded it end.

The merit of the grand jury presentation relies entirely on our acceptance of Bob McCulloch’s office desiring an indictment against Darren Wilson.  Just as a prosecutor can indict any damn person he pleases, he can similarly make sure a person is not indicted.  He does so through subtle tricks. He does so through big lies.  Like presenting “all the evidence.”  Like the Ferguson Lie.

When looking for probable cause (which defense attorney and blogger Rick Horowitz notes has a definition “built from wiggle words”) the burden of proof is so low that grand juries–who are not in contact with a defense attorney or judge–overwhelmingly indict. Horowitz writes:

When I explain “probable cause” to my clients in the context of what California refers to as a “preliminary hearing,” I explain it to them like this:

 “Probable cause” means that a crime might have been committed, and you might be the person who committed the crime. It doesn’t matter if there is also a possibility – even a strong possibility – that you are not guilty of any crime. “Probable cause” just means you might have committed the crime. The judge will therefore say that we need to have a trial to find out whether, or not, you actually did commit the crime (or crimes) of which you are accused.

To show you how loose this concept is, in a recent case in which I was the attorney, my client was charged with sexual molestation because he touched a girl on the shoulder – yes, the Complaint (the legal document with the charges) against him actually says that he touched her on the shoulder – and she said that it made her feel “un…comfortable.” But there were millions of dollars to be made, and a young girl made “un…comfortable” by a thirty-year-old male touching her on the shoulder might be a violation of the laws against molesting children.

Or so the court said when refusing my request that that charge be dismissed at the end of the preliminary hearing.

And so it was that from the moment of the news reports, including the accounts of dumbfounded uninvolved eyewitnesses to the shooting of Michael Brown by Darren Wilson, there was “probable cause” to believe that the shooting was unjustified. Something did not smell right. It continues not to smell right.

Many commenters and Ferguson residents saw this grand jury result coming early on, and the police department’s response only made the writing on the wall that much clearer. As Gideon, the blogger at A Public Defender (titled such because he is a public defender) notes, the lack of indictment fell in line with what many people of color have come to expect from the justice system:

That’s what this anger is about. That this non-indictment exposed the gaping race chasm in America: white people love police and authority when it comes to maintaining the social order. That social order is fairly simple: there are the whites who can do whatever they want, then there are the “criminals” and the “minorities” and the “gays”, except those that act like the white people. The system exists to contain the teeming masses of minorities/criminals and to keep them in check.If a black man is killed by a police officer, well that’s his fault…That’s what this anger is about. It’s about the death of one boy, for sure, but it’s also about the death of the right to be free and the right to be equal in America.

Gideon further elucidates this point by calling out this exchange between Darren Wilson and the prosecutor grand jury transcript, and raising the following question.


Guess: is this a prosecutor questioning a victim? A prosecutor questioning a defendant? A defense attorney questioning a victim? A defense attorney questioning a defendant?

In a case with a different defendant and a different victim, it’s impossible to fathom such an exchange taking place between a prosecutor and the accused.

Though, it’s important to note: it’s not the end of this case–either in court or in the streets. Many are working towards action they can take to further the cause, and have set their eyes to the horizon of the federal charges Wilson is still facing. In a press announcement from the National Bar Association of America:

National Bar Association President Pamela J. Meanes expresses her sincere disappointment with the outcome of the Grand Jury’s decision but has made it abundantly clear that the National Bar Association stands firm and will be calling on the U.S. Department of Justice to pursue federal charges against officer Darren Wilson. “We will not rest until Michael Brown and his family has justice” states Pamela Meanes, President of the National Bar Association.

Though the federal decision isn’t expected for a while, tension isn’t expect to go away any time soon.