Martin DyckmanMany years ago, a Union County jury spared the life of an inmate who had killed the Florida State Prison’s deputy warden during an escape attempt. Raiford was the governmental version of a company town, so how did the killer get second-degree murder instead of a ticket to the electric chair?
The reason, as an official once explained to me, was that nobody who worked at the prison, or had a relative who did, was eligible for the jury. That left only those who had been turned down for jobs there.
He may have been stretching the point, but it was a point that anyone who has ever been called for jury duty will recognize.
Your experiences matter.
If it’s a criminal trial, you’ll be asked whether you or a relative have ever been crime victims, and if so, of what crimes. They’ll want to know whether anyone in your family is or has been a police officer. Depending on the answers, you may be disqualified for cause.
Now suppose that Darren Wilson had been indicted for the death of Michael Brown at Ferguson, Missouri, and Robert McCulloch had been called as a prospective juror.
He wouldn’t have been there very long.
McCulloch’s brother was a cop, his mother was a clerk for the police, and his father, Paul McCulloch, was an officer who died in the line of duty during a shootout that is still commemorated by the St. Louis police.
How does it happen, then, that a person whose life experience would have disqualified him from serving as a juror in a police shooting is allowed to determine whether the case will even come to trial?
Make no mistake: McCulloch, the St. Louis County district attorney, can’t pin the Ferguson no-call on the grand jury. As a judge once famously said, any prosecutor who wants to can get a grand jury to “indict a ham sandwich.” In the fantastically rare event when a prosecutor doesn’t get an indictment, it’s because he didn’t want one and was using the grand jury to cover his behind.
The question is not whether Officer Wilson would have been convicted of anything, even manslaughter let alone murder, had he been brought to trial. Juries are sympathetic to the police, understandably so, and their duty — as in any case — is to acquit if the evidence doesn’t prove guilt beyond a reasonable doubt. With sharp disagreement among witnesses as to what they saw — a universal problem with eyewitness testimony — Wilson might well have been acquitted.
But a trial jury has the benefit of arguments from counsel for the prosecution as well as the defense, and explicit instructions from the judge on how to apply the law. They’re not left on their own, as McCulloch did with his grand jury, to sort out months of conflicting testimony and decide, as lay people, what laws might apply. And by the way in which he and his assistants presented the witnesses, McCulloch appeared to be playing the incompatible roles of defense counsel and prosecutor.
The fundamental problem with the case — and why McCulloch bears the moral responsibility for the riots that have ensued — is that there was never any basis for confidence in it. He should have asked for a substitute prosecutor.
McCulloch’s family history as the son of a police officer who was murdered by a black suspect was well known; indeed, he cited it when he ran for district attorney. And so was his record in 23 years in office: no prosecution in any police shooting; four cases — and now five — taken to grand juries without indictments.
McCulloch’s unctuous comments about seeing to it “that nothing like this ever happens again” will not satisfy anyone that there has not been another miscarriage of justice when a white cop shot a black kid.
If nothing like that is to ever happen again, if there is ever to be public respect for the process, many things need to change.
One of them is that any inquiry into possible police misconduct should never be left to a prosecutor who works with the same police day by day and year by year. He and they are on the same team. No matter how hard he might try to be impartial — and McCulloch didn’t even make a show of it
— no one else can be expected to believe it.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, N.C. Column courtesy of Context Florida.
