Nearly two weeks after Darren Wilson shot dead teenager Michael Brown in Ferguson, Missouri, angry community members and leaders want to know why the police officer has yet to be arrested.
In a situation rife with mistrust between law enforcement and residents, St. Louis, Missouri Prosecutor Robert McCulloch’s decision to not arrest Wilson and to instead first seek an indictment from the grand jury has raised eyebrows and new accusations of bad faith.
Aside from the Ferguson police department’s broken relationship with African Americans, McCulloch has his own history with the community and many members don’t believe he will zealously pursue justice for Brown as much as seek to protect Wilson and the police department. Missouri state senator Jamilah Nasheed has written to McCulloch, asking him to recuse himself, and, along with community leaders, is expected Thursday to deliver 70,000 signatures calling for a special prosecutor.
Some observers have suggested that McCulloch’s decision Wednesday to go to the grand jury for an indictment before arresting Wilson is a way of slow-walking a criminal investigation. But according to local legal experts, McCulloch’s action doesn’t on its face prove he is trying to thwart the process and could indicate anything from a lack of will to an abundance of caution on the prosecutor’s part.
That’s because in St. Louis, the prosecutor can proceed in one of two ways.
He can make an arrest on any charge he believes he has the evidence to support. But to secure the indictment, he still has to show probable cause. This showing can be at a preliminary hearing, where a judge makes the finding, or in front of the grand jury, where citizens decide. While a preliminary hearing is open to the public, the grand jury is not.
Or, a prosecutor can go straight to the grand jury, to secure an indictment after witness testimony has been heard, potential defenses (i.e. self defense, fleeing felon) asserted, and probable cause has been found. If it is, then law enforcement will arrest a suspect and the case proceeds to trial.
Peter Joy, a professor of criminal justice at Washington University in St. Louis and a criminal defense lawyer, said that even had the arrest come first, in a case like this, where the accused will likely claim a defense, the probable cause finding would still go to the grand jury rather than to a judge.
And while not arresting Wilson immediately means he’s free, Joy points out that even had he been arrested on the spot, he might very well have been freed shortly after, as soon as he made bond.
As to why McCulloch would choose to go to the grand jury first, Joy said, “I think it would be easier to look in a crystal ball,” but generally, he said, “To go to the grand jury without charges signals uncertainty if what or anything the indictment should be.”
If it is uncertainty, as opposed to unwillingness, Joy speculated it might be because the evidence and forensic test results have yet to conclusively point to what charge could be substantiated — manslaughter or which degree of homicide.
Scott Rosenblum, a prominent criminal defense attorney in St. Louis, said many of the witnesses who had lawyered up might not be talking to the police investigating the killing, and the grand jury allows the prosecutor to compel testimony.
While making an immediate arrest would have sent a strong message, Rosenblum said that, “It would be worse to make an arrest, and then be unable to secure the indictment and have to drop the charges.”
Of course how the members of the grand jury read the absence of an arrest will affect how they see the evidence put before them.
But given the bad blood between the community and law enforcement — protestors demanding Wilson’s arrest were outside Rosenblum’s window as he spoke to us — Rosenblum emphasized that everything should be as transparent as possible.
A concurrent and separate DOJ investigation into potential violation of federal laws continues regardless. How effectively the local authorities handle the local case, of course, will affect what federal charges the Justice Department might bring.