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Where the Ferguson Process Went Wrong, and What It Might Have Gotten Right

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The Ferguson Grand Jury has finished its deliberations and it’s not the outcome that local activists or their supporters had wanted. Nearly four months after Officer Darren Wilson shot and killed Michael Brown, an unarmed 18-year-old, the Grand Jury decided not to indict Wilson on any charges. The St. Louis prosecutor, Robert McCulloch, announced the decision at 8 pm local time, or 9 pm Eastern time. Demonstrations on the streets of Ferguson followed and, as of midnight, several fires were burning in the area. Clashes between demonstrators and police appeared from afar to be less intense than the confrontations that convulsed the community in the late summer, but, on Tuesday morning, officials said the destruction and damage overnight had actually been worse

McCulloch’s press conference was unusual in several respects. He began by attacking the media for reporting partial evidence and lashing out at social media for spreading rumors. He then summarized the evidence that the Grand Jury considered and, as promised, posted most of the relevant information online. One particularly vivid piece of evidence was Wilson’s own testimony, taken from what was reportedly a four-hour deposition and never before made public. Wilson described a confrontation in which Brown nearly overpowered the officer and grabbed at his gun, all while Wilson was still in the car. Afterwards, Brown took off running. Wilson said that he fired the fatal shots only after Brown had turned and seemed to be charging back at him—putting one hand "under his shirt and into his waistband," perhaps to grab a weapon, and having closed to within ten feet.

Wilson, like every other witness, might not have been telling the truth—either because he wanted to mislead the Grand Jury or because he simply remembers seeing and feeling what he wants to have seen and felt. That's human nature. Some other witnesses told different stories, suggesting—for example—that Brown was in the act of surrendering when Wilson killed him. Their recollections paint a very different portrait but could be flawed for the same reasons that Wilson's could be. According to McCulloch, witnesses frequently contradicted one another and, in some cases, they contradicted themselves. Physical evidence answered some but not all questions. 

At this point, and pending a thorough examination of everything McCulloch has posted online, it's difficult to feel confident about exactly what happened in Ferguson on that day. Given the standards of Missouri law, which gives police officers deference when they claim self-defense, it’s also difficult to imagine a trial jury agreeing to convict Wilson of a crime. That alone might have been reason enough for a Grand Jury not to find “probable cause” of a crime, according to Frank Bowman, a professor of law at the University of Missouri:

A finding of probable cause means that the grand jury is able to conclude, based on the evidence, that it is more likely than not that each and every element of a charged crime exists.  The fact that some evidence exists to support one or all elements doesn't amount to probable cause—particularly if there is also evidence pointing the opposite direction on some or all elements. … The grand jury does not need the level of certainty, beyond a reasonable doubt, required for conviction by a trial jury. But if it is to serve any useful function as a protection against unfounded prosecution, it must refuse to indict unless it is convinced that a crime was committed. 

Of course, even legal experts disagree over exactly what role a grand jury is supposed to serve in cases like these. But if no indictment was ultimately the proper outcome—and, to be clear, that’s still a big “if”—the process that led to it may have been flawed, for reasons my colleagues Danny Vinik and Noam Scheiber lay out. McCulloch’s decision to present the grand jury with all of the evidence, rather than build a clear case for indictment, was unusual and suggested he may not have pursued the case as vigorously as he could have. McCulloch has close ties to police, including through his family, and is the son of a former police officer who was shot in the line of duty by an African-American assailant.

The underlying reality also matters. There’s a profound demographic mismatch between Ferguson police and political leadership, which are mostly white, and Ferguson’s population, which is mostly black. A series of recent leaks seemed designed to convince the public that Brown was in the wrong and Wilson in the right. Instances like those eroded community faith in the criminal justice system—and it’s not like there was much trust in the first place.  

Wilson could still face federal prosecution for violating Brown’s civil rights (unlikely) or civil action for wrongful death (less unlikely). But, at this point, the most important product of this debate could be changes in Ferguson—to the police and to the political establishment and to the underlying socio-economic framework that has done so much to spread anger and disillusionment. Those changes wouldn’t bring Michael Brown back to life. But they’d suggest his death, whether or not the result of criminal action, wasn’t in vain.

Jonathan Cohn

News from Monday:

MORE FERGUSON: The news and reactions, told as a series of tweets. (The Dish)

DEFENSE: President Obama announced Defense Secretary Chuck Hagel’s resignation, which occurred under pressure from the White House amid spiraling global crises. (Helene Cooper, New York Times

CAR SAFETY: A Texas woman convicted ten years ago for killing of her fiance in a car accident was exonerated after GM confirmed that the vehicle was part of a batch that had faulty ignition switches. (Jeff Bennett, Wall Street Journal)

THANKSGIVING TRAVEL: Airlines are bracing themselves for snowstorm that is expected to hit major cities on the East coast Wednesday afternoon. (Doyle Rice, USA Today) 

Articles worth reading 

Obama should go to Ferguson: Brian Beutler says it's an opportunity to give his most important race speech ever. (New Republic)

President Romney as an American Caesar: Norm Ornstein points out that Mitt promised far more audacious power grabs than anything Obama has done. (The Atlantic)

The stats show: Police deaths have plummeted, says Christopher Ingraham, while justifiable homicides have reached their highest level since 1994. (Wonkblog)

A closer look at the stats: In Utah, Ben Mathis-Lilley reports, more people are killed by police officers than by drug or gang-related violence. (Slate)

Death penalty in Texas makes no sense: A man in Texas who is legally insane is scheduled for execution on December 3rd. (Editorial Board, New York Times)

What we’re watching 

How the country will react to the decision from the Ferguson grand jury and who will replace Hagel.


Rebecca Leber criticizes Andrew Cuomo for playing dumb on climate change to avoid a “political debate.” Danny Vinik explains why Hagel couldn’t fix the Pentagon’s budget.