As Ferguson burned this week, the law books got a workout. Suddenly, grand-jury procedure was all the rage. Commentators better known for parroting the bromide that a prosecutor can get a grand jury to indict a ham sandwich went berserk when the sandwich on offer was a white cop and the grand jury refused to bite.
As it turns out, there was no need to thumb the legal treatises of Blackstone or Joseph Story. If you were going to hit the books, Jonah Goldberg’s Liberal Fascism would have served you better. Brilliantly illustrating modern liberalism’s roots in 20th-century progressivism — a movement as comfortable marching lockstep with Stalin as it was borrowing copiously from Mussolini — Jonah homes in on the centrality of myth. It is irrelevant whether an idea around which the Left’s avant-garde rouse the rabble is true; the point is the idea’s power to mold consciousness and rally the troops.
For the American Left, a bedrock myth is that white cops kill black kids. It derives from the overarching myth that casts racism as our indelible national sin. As Heather Mac Donald explains, citing exhaustive criminology studies, it flows seamlessly from the quackery that dismisses the disproportionately high incidence of violent crime in African-American communities as an illusion — as the product of police racism and the consequent hyper-targeting of black boys and men, rather than of racial differences in patterns of offending.
Darren Wilson was a white cop and Michael Brown was a black teenager killed in a violent confrontation with Wilson. Therefore, Brown was the victim of a cold-blooded, racially motivated murder, Q.E.D. That is the myth, and it will be served — don’t bother us with the facts.
Once you’ve got that, none of the rest matters. In fact, at the hands of the left-leaning punditocracy, the rest was pure Alinsky: a coopting of language — in this instance, the argot of grand-jury procedure — to reason back to the ordained conclusion that “justice” demanded Wilson’s indictment for murder. And, of course, his ultimate conviction.
I could spend the rest of the day rehearsing why these legal claims are specious. Particularly risible is the story line that the grand jury convened by St. Louis County Prosecutor Robert McCulloch was a sham — a story line that is itself an elaborate fraud.
Prosecutors can indict a ham sandwich, we were lectured, because the state’s burden in a grand-jury proceeding is so scant. Prosecutors need not prove the case beyond a reasonable doubt, as they must do at trial; they merely need show probable cause that a crime was committed — and by the person of whom it was alleged — and a trial should therefore be held. There was conflicting testimony about who the aggressor was in the Wilson–Brown confrontation; therefore, the story line goes, there was more than enough cause to indict Wilson and let the ultimate determination of guilt — and you can be sure they mean guilt — be made at a public trial. McCulloch instead used the grand jury to exculpate Wilson, a white (cop) privilege that a black defendant could never dream of obtaining.
To describe this as nonsense is a slander on nonsense. It is freely conceded that the grand-jury inquest into Brown’s killing was more a political than a legal exercise. That, however, was the result of intimidation by the Left’s race-mythology agitators — very much including the president and the attorney general of the United States. It was clearly not aimed at benefitting Wilson.
In a typical case, prosecutors rely on the low probable-cause threshold applicable in grand-jury investigations only for the purpose of limiting how much evidence they need to present. Contrary to another regnant myth, guilt is not in doubt in most criminal cases. Overwhelmingly, they are open-and-shut, often supported by post-arrest confessions. As a result, the grand jury can appear to be a pro forma exercise — a cookie-cutter procedure the Constitution requires before an accused person can be convicted of a crime he not only clearly committed but to which he will almost certainly plead guilty.
On the other hand, when convinced that the subject of an investigation either is innocent or is incapable of being proven guilty beyond a reasonable doubt, prosecutors do not present the case to the grand jury. That’s because their focus is the trial, not the indictment. If, after preliminary investigation, prosecutors do not assess the evidence as strong enough to convince a trial jury to render a unanimous guilty verdict, they dismiss the case on the basis of their own professional judgment — it never sees the grand-jury room.
At a proper trial, Wilson could not have been convicted of murder. That does not mean what happened was not horrible — it was. It does not mean Wilson is not civilly liable (although I doubt that he is). It simply means the circumstances of the shooting do not meet the high criminal-law standards for either intentional homicide or the criminally irresponsible causing of death.
The critics’ claim that Wilson’s innocence is put in doubt by “conflicting testimony” is legally and factually frivolous. Legally, our system resolves all doubt in favor of the accused — as the Left is apt to remind us when a terrorist is in the dock, this is called the “presumption of innocence.” Factually, the chatter about “conflicting testimony” falsely implies that all testimony is created equal. In reality, accounts given by anti-Wilson witnesses, where not patently fabricated, tended to be discredited by forensic evidence. The forensics, instead, corroborated the exculpatory testimony — much of which came from African-American witnesses, a fact that undermines the myth and therefore goes largely unnoticed. The grand-jury rules are more permissive than those that govern criminal trials, but prosecutors are still ethically barred from asking the grand jury to rely on testimony they believe is false, inaccurate, or unconvincing.
Add to that the facts that Wilson’s own testimony would have powerfully influenced a jury (as a credible defendant’s testimony always does), and that Wilson would have had the benefit of Missouri law, which looks favorably on the use of deadly force by police officers who are endangered in attempting to make an arrest. A jury would have acquitted Wilson in short order — assuming for argument’s sake that the judge had not dismissed the case for lack of evidence before letting it get to jury deliberations.
If the Michael Brown shooting were an ordinary case, a grand jury would never have been asked to consider indicting Officer Wilson. McCulloch, the chief prosecutor, directed his office to present it to the grand jury because it was not an ordinary case — because it was a racially charged case in which Al Sharpton’s notorious “No Justice, No Peace” demagoguery was amplified by the community organizers in the White House and the most politicized Justice Department in American history.
Ordinarily, prosecutors unilaterally decide whether or not to seek an indictment and, in the rare instance when anyone asks why they decided as they did, are restrained by investigative-secrecy protocols from explaining their decision. But McCulloch was understandably unwilling to make a unilateral judgment for which he would have been unable to defend himself from inevitable charges of racism. He thus directed his office to make an exhaustive presentation to the grand jury. It was both a Pontius Pilate–style abdication that made the community, rather than himself, accountable for the charging decision; and a vehicle that, with the court’s blessing, enabled him to disclose the voluminous evidence justifying the decision not to indict.
All very reasonable, but let’s not pretend reason has anything to do with what happened in Ferguson this week. In Liberal Fascism’s focus on myth, Jonah recalls Mussolini’s assertion, “It is faith that moves mountains, not reason. Reason is a tool, but it can never be the motive force of the crowd.” The crowd in Ferguson was moved to riot on the article of a false faith that condemns America and its police forces as incorrigibly racist. It is from this condemnation that all purported “reasoning” proceeds.
Such reasoning dictates that our constitutional right not to be indicted in the absence of just cause should be subordinated to the mob’s demand for a public trial. Succeeding in that legerdemain, it next dictates that our constitutional right not to be convicted in the absence of proof beyond a reasonable doubt be subordinated to the mob’s demand for a guilty verdict.
Such a verdict that would have had only the most tangential connection to the tragedy of an 18-year-old’s death or a police officer’s well-founded fear for his life. But it would have fed the myth.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
editor’s note: This article has been amended since its initial publication.