“A prosecutor could get a grand jury to indict a ham sandwich” (so said the Chief Judge of New York State’s highest court). Or could indict Abel for killing Cain. Or Reeva Steenkamp for killing Oscar Pistorius. And commonly the prosecutor would do that in a grand jury proceeding lasting only hours. Indeed, the grand jury that does not act as a rubber stamp of the prosecutor is so unusual that it has a special name - a “run-away grand jury.” Can anyone doubt that if Michael Brown had killed police officer Darren Wilson, Brown would immediately have been taken into custody and charged with first degree murder?
So why was the St. Louis County prosecuting attorney, Robert R. McCulloch, conducting a three-month grand jury investigation into Wilson’s killing of Brown?
The reason begins with McCulluch’s most serious ethical violation, which was his conflict of interest in participating in the indictment of a police officer in his own jurisdiction. An unethical conflict of interest occurs when there is a risk that the lawyer’s representation of a client will be materially and adversely affected by the lawyer’s own interest or by the lawyer’s duties to a current client, a former client, or a third person. The forbidden conflict of interest exists even though it’s not probable that any adverse effect will in fact occur. Therefore, there’s an unethical conflict of interest when a prosecutor participates in the indictment of a police officer in his or her own jurisdiction, because the prosecutor has a personal and professional need to maintain good relations with the police, who have been known to publicly threaten not to cooperate with a prosecutor thereafter if a fellow officer is indicted. A prosecutor in that position should therefore obtain the appointment of a special prosecutor who does not herself have a conflict of interest.
As a result of McCulloch’s conflict of interest, however, he was determined to see that officer Wilson was not charged with a felony. McCulloch has therefore conducted this extraordinary three-month grand jury, so that he can put the responsibility on the grand jury for declining to indict Wilson. The potential criminal charges against Wilson were:
■ Second-degree murder, defined as “knowingly causing the death of another person,” and punishable by a prison term of 10 to 30 years;
■ Voluntary manslaughter, which is causing a death “under the influence of sudden passion arising from adequate cause,” with a penalty of five to 15 years;
■ Involuntary manslaughter in the first degree, which can mean “recklessly” causing a death, with a penalty not to exceed seven years;
■ Involuntary manslaughter in the second degree, which is acting “with criminal negligence” to cause a death, with a penalty not to exceed four years.
But all McCulloch had to do in this case was explain to the grand jury the formal requirement for an indictment, which is probable cause. Probable cause in a criminal case means that the police and/or prosecutors must be able to explain why they have a reasonable belief, despite some doubt, that a crime has been committed and that the accused person did it. That requirement can be refuted, however, just by Darren Wilson’s own testimony that Brown went for Wilson’s gun, and that Wilson reasonably believed that Brown was about to kill him when Wilson shot Brown in self-defense.
How then can a prosecutor get a grand jury to indict an accused person after only a brief proceeding? The reason is that grand jury proceedings are confidential and are not overseen by any court or other authority. Also, constitutional law allows prosecutors to use hearsay, other evidence that would be inadmissible at trial, and one-sided evidence; they are not required to present exculpatory evidence. If a prosecutor wanted an indictment of Wilson in Brown’s killing, for example, he would inform the grand jurors of testimony by Brown’s friend Dorian Johnson, who said he was within arm's reach of Brown throughout the incident, and that the teenager never went for Wilson’s gun. He would also use reports by some eye-witnesses that Brown had his hands in the air to surrender, and by other eye-witnesses that Brown was running away when Wilson shot him. He might also emphasize to the grand jurors that probable cause does not mean proof beyond a reasonable doubt.
One result of McCulloch’s conflict of interest, therefore, is unequal justice - different “justice” for officer Darren Wilson, as against justice for an ordinary member of the community like Michael Brown.
The final ironical truism illustrated by the case in Ferguson is that Robert R. McCulloch will never be disciplined for his unethical conduct, because prosecutors are virtually never professionally disciplined.