(The writer served as a Trial Attorney with the United States Department of Justice 1976-1980 and conducted a number of grand jury investigations into police shootings that led to death.)
So many people – well-educated people – are misinformed about so many things regarding the grand jury investigation of Darren Wilson. One writer, typical of many, falsely attributes the grand jury decision not to indict Officer Wilson as a reflection of “the tragically low value our society places on the lives of young black men.” Yet there is no evidence that the decision not to press charges against him had anything to do with racial bias as opposed to the evidence. The same writer attributes the outcome to the way that Robert McCulloch “led the grand jury [i.e.] in a manner that seemed designed to indict the unarmed [Michael] Brown.” The accusation ignores the point that Mr. McCulloch did not involve himself with the grand jury other than introduce the two assistants district attorneys.
The real complaint of those unhappy with the grand jury decision is that, instead of jurors hearing only those witnesses who would condemn Officer Wilson, regardless of the inconsistency of their testimony to the physical evidence, the grand jury actually heard all of the eyewitnesses, as many as could found and subpoenaed. Contrary to the apparent belief of these critics that the only proper function of a grand jury is to pass along indictments so that “truth” can be determined at trial, the grand jury in our country has long been an institution where crimes are investigated, and the grand jury is expected to put brakes on potential prosecutions when adequate evidence of a crime does not exist. That is certainly the situation with respect to Officer Wilson. For a crime to have been committed, there must have been credible evidence to negate his testimony that he feared for his life. The mere fact that a witness walks into a grand jury room and purports to tell the truth does not mean that the witness is credible, and witnesses whose testimony is starkly contradicted by physical evidence have no credibility. If ten witnesses swear that Officer Wilson stood over Mr. Brown’s back as he lay on the ground and fired repeatedly into his head, but the autopsy report shows that no such thing happened, a grand jury is not required to return an indictment.
The power of the grand jury to protect against arbitrary criminal prosecutions was so fundamentally important to our country that it was embodied in the Bill of Rights. The Fifth Amendment provides in pertinent part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …” The Fifth Amendment does not say that grand juries should ignore the distinction between what is credible and what is not and therefore indict regardless of the facts so that the “truth” can be determined at trial.
It further troubles me greatly that almost every account of the shooting specifies that Mr. Brown was an “unarmed teenager.” The uncontradicted testimony is that Mr. Brown assaulted Officer Wilson, punched him repeatedly, through the open window of Officer Wilson’s squad car. A fist of a 289-pound man, teenage or not, delivered from the leverage of height, is a weapon, whether or not it’s a firearm. Any law enforcement officer knows that he can be killed or incapacitated by a physical blow from the fist of an enraged man to the head.
The uncontradicted testimony is also that Mr. Brown tried to grab Officer Wilson’s gun and had in fact forced the barrel of the gun to point at Officer Wilson himself. By constantly referring to Mr. Brown as “unarmed,” commentators on this tragic story are making light of the mortal danger that Officer Wilson was in when he shot at Mr. Brown. Law enforcement officers are sadly killed time and again when their antagonists strip them of their guns. Some data indicate that between 2000 and2010, at least 51 officers were killed by alleged perpetrators who used the officer’s own gun. Four officers were thus killed in 2011, and one officer thus killed in 2013. Every police officer is aware that this is a risk every time he or she steps onto the street and is trained to guard against this risk. So as Mr. Brown charged Officer Wilson – the physical evidence is clear that he did – Officer Wilson most reasonably feared for his own life. Anyone who says otherwise has obviously never been in that position.
In the aftermath of this affair — and in light of the comments of those who feel that justice was not done and that the only possible justice was to charge Officer Wilson with a crime – who in their right mind would want to become a police officer?