The news that a grand jury began hearing evidence Wednesday in the case of a white policeman who shot dead an unarmed black 18-year-old did little to placate skeptics, who say the rules in place to empower the jurors will undermine justice for the victim.
Privacy is chief among those rules. It allows the grand jury to operate out of the public eye as it listens to witnesses and weighs a possible indictment of Officer Darren Wilson in the death of Michael Brown.
But in controversial cases such as this one, which has fueled days of unrest in the St. Louis suburb of Ferguson, privacy breeds distrust, and distrust has been building since Aug. 9, when Wilson opened fire after what police said was a scuffle instigated by Brown. Witnesses say Wilson was the aggressor, and supporters of Brown’s family say the Police Department’s five-day delay in identifying Wilson as the shooter planted the seeds of suspicion that law enforcement has something to hide.
On Wednesday, protesters gathered, as they have frequently in recent days, in front of the Buzz Westfall Justice Center in the St. Louis County seat of Clayton, south of Ferguson, and demanded that county prosecutor Robert McCulloch remove himself from the case. Most, like Gwen Stewart, who held a sign reading, “Step Down McCulloch,” said they did not trust McCulloch to be impartial when dealing with a case involving a fellow law enforcement official.
“It doesn’t make any difference what the grand jury says,” said Stewart, a retiree who lives in Florissant, another St. Louis suburb. “The prosecuting attorney can override them. The prosecuting attorney is the grand jury. He favors the Police Department because he is the Police Department.”
Indeed, McCulloch is not bound by the grand jury, and like prosecutors everywhere, he has angered some constituents by not pressing charges in controversial cases. But McCulloch, an elected official who has been returned to his job repeatedly by voters since 1991, has denied allegations of bias toward police or against black males.
The protesters’ focus on him, he said Wednesday, is deflecting attention from the issue at hand: finding out what really happened in the minutes before Brown was killed.
“This is one of those distractions surrounding this case that is just tragic,” McCulloch said on St. Louis’ KTRS radio. “We’re losing focus of why we’re all here. We want to get to work, we want to get started.”
McCulloch said he would extend the term of the grand jury, which is due to end in early September, to give it time to hear all of the evidence as it is collected. He denied wielding undue power over the panel, saying its members — drawn randomly from voter and other registration lists — study the evidence, hear witnesses and make their decision.
Even so, attorney Sarah Molina of St. Louis, who joined protesters outside the courthouse Wednesday, said the mere appearance of bias in some people’s eyes already had tainted the process.
“It has to look impartial if you want people to have faith in the system,” Molina, who is white, said as some protesters lay down on the hot pavement in front of the justice building. A line of about 20 police officers stood guard outside the glassy structure, watching the demonstration but not intervening.
All felony cases go either before a grand jury or are presented in open court at a preliminary hearing, where a magistrate hears evidence and determines whether there is enough to order the accused to stand trial. In St. Louis County, a spokesman for McCulloch’s office, Ed Magee, said all homicide cases go before a grand jury.
Magee said it was too early to know how many potential witnesses might be called because evidence was still being collected. He said Officer Wilson was among those “afforded the opportunity to testify.” Wilson, 28, cannot be compelled to testify.
The grand jury system has its advantages, though they are not always visible to outsiders eager to learn every detail of a hot-button case, said Mark Berger, an expert in criminal law and a professor at the University of Missouri’s law school in Kansas City.
Among other things, Berger said, grand juries have the power to seek evidence that exceeds police powers, and juror identities are kept secret.
“They have virtually no restraints,” he said. “They don’t need to establish probable cause to demand evidence.”
The grand jury also has the luxury of time — it does not work under a time limit. The St. Louis County grand jury meets each Wednesday but could meet more often if it wants. It needs nine of its 12 members to agree on probable cause for an indictment to be handed down.
McCulloch has said his target date for this grand jury to finish hearing evidence is mid-October.
“The grand jury is more flexible on time, so you can do a more in-depth investigation,” said Laurie L. Levenson, a law professor at Loyola Law School and a former assistant U.S. attorney in Los Angeles. “It’s more secret, which might alarm some people, but that might also make more people open to coming forward.”
On the flip side, Levenson said that because prosecutors present the evidence to the grand juries, choose which witnesses to call, and control the proceedings, the system is seen as advantageous to the prosecution. That is exacerbated in a case already rife with allegations of a lack of transparency.
If the grand jury decides not to issue an indictment, or if the case goes to trial and Wilson is acquitted, the Justice Department could still file federal charges against him. That’s a scenario that unfolded in Los Angeles after a jury failed to convict four police officers accused of beating motorist Rodney King.
That trial’s outcome triggered the 1992 riots that left 53 people dead. It also led the federal government to seek grand jury indictments for violation of King’s civil rights.
A year later, two of the four police officers were convicted in federal court in King’s beating. The other two were acquitted.