Earlier this month, Ferguson, Mo., police officer Darren Wilson testified for nearly four hours to the St. Louis County grand jury that will decide whether he will be indicted for the Aug. 9 shooting of unarmed teenager Michael Brown.
It was a striking moment. The subject of a grand jury investigation rarely risks the legal consequences of testifying before they have even been charged. But it was, at least in theory, in keeping with the prosecutor’s pledge to put every piece of evidence before the jurors. Anthony Gray, one of the attorneys for the Brown family, had a visceral reaction to the news of Wilson’s testimony, though: “The only thing that happened for over four hours was Mike Brown’s body laying on concrete.”
“I can’t imagine what he could talk about for four hours,” Gray told TPM in a recent phone interview, “about an incident that took in total a matter of minutes.”
It crystallizes the deep-seated distrust between the authorities and the Brown family specifically and the Ferguson community more broadly, a tension that has become centered on one of the most closely watched grand juries in years. As recently as last week, both sides were unable to see eye-to-eye about what role the Brown family could even play in the investigation. In interviews with TPM, lawyers for the family cast doubt on the prosecutor’s motives, and the prosecutor’s office expressed skepticism that the family would have any evidence relevant to the case that the police do not already have.
The grand jury began hearing evidence on Aug. 20. In most cases, the prosecutor directs the investigation with specific charges in mind, which then dictates what evidence is presented to the jurors. But not this time. Prosecutor Bob McCulloch, whose office is overseeing the case and who has come under scrutiny in the Ferguson community for his ties to law enforcement, has said that the jury will see everything.
“We will be presenting absolutely everything to this grand jury — every statement that any witness made, every witness, every photograph, every piece of physical evidence,” McCulloch said last month “Absolutely nothing will be left out.”
McCulloch has been a controversial figure. Protesters have pointed to his past, which includes the 1964 shooting of his father, a police officer, in the line of duty. He has tried to counter that through pledges of transparency and assigning day-to-day oversight of the grand jury to two deputies, one whom is black.
Still, the unusual nature of the grand jury proceedings has raised eyebrows, and former prosecutors have told TPM that the approach would undoubtedly give McCulloch some public-relations cover if the jury decides not to indict Wilson. In fact, one suggested that there was a easy way to help one understand how truly transparent this grand jury would be.
“If they’re doing this wide open grand jury investigation, is it simply the district attorney’s office who’s deciding what witnesses are going in there?” Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola University in Los Angeles, told TPM. “Or have they reached out to the lawyers of the family or other people? Are they actually soliciting input from other parties?”
“That can give you an idea of whether this is just cover,” she said, “or this is really a community investigation.”
So over the last few weeks, TPM tried to answer that question. And while it is never easy to reach a firm conclusion in these legal gray areas, which can look very different depending on what side you’re on, what is undeniable is the rift between the prosecutor’s office and the Brown family. As TPM probed the issue, both sides seemed to be preemptively spinning the grand jury decision yet to come.
St. Louis County prosecutor Bob McCulloch in Feburary 2011. (AP Photo/Tom Gannam).
First, TPM approached lawyers from the Brown family. Wilson’s lawyer Greg Kloeppel did not return TPM’s request for comment on whether they had been allowed to offer other evidence, but Wilson had been offered the opportunity to testify and taken it. So what input has the family of 18-year-old Brown had?
Benjamin Crump, the Florida civil rights attorney who also represented Trayvon Martin’s family, told TPM on Sept. 11, more than three weeks after the grand jury started hearing evidence, that they had never been approached.
“We certainly believe that we have some things that we think should be presented to the grand jury and make probable cause clear,” Crump said in a phone interview.
He also conveyed the Brown family’s general distrust of the proceedings and his belief that the case should have never gone to a grand jury because McCulloch already has enough evidence to indict Wilson.
“The whole process concerns us, the entire process,” Crump said. “I think there’s a reason why the people mistrust the local law enforcement so much in the Ferguson community. They think this secret proceeding is going to be whatever the prosecutor wants it be, and nobody is going to know except the prosecutors and those jurors.”
“If the prosecutor presents the case appropriately, there will be an indictment,” he continued. “If not, then there won’t be an indictment and the grand jury will do what the prosecutor will have them do.”
Another former prosecutor, Eugene O’Donnell, who worked as a district attorney in Queens and is now a lecturer at the John Jay College of Criminal Justice, told TPM that there was no reason for McCulloch’s office not to give the Brown family a chance to suggest evidence. It would then be the prosecutor’s job to determine if it was appropriate to present to the grand jury, he said.
“There’s no reason at all why the family should not be asked about what they think is relevant,” he told TPM. McCulloch’s office “should offer. The difficulty you’re going to have is the evidence’s relevance and whether it’s hearsay. But they’re in the best position to put all these pieces together.”
So TPM reached out to Edward Magee, the spokesman for McCulloch’s office. Magee said that they had offered the services of the office’s victims services unit and stated that prosecutors were willing to meet with the Brown family. Magee also said that his main point of contact had been Gray, who is based in St. Louis.
But he seemed to question whether the Brown family would have anything to add to the investigation and placed the onus on the family’s attorneys to make an offer of evidence.
“Mr. Gray was advised that we were willing to meet with the family when they were ready and he advised he would get back with us if they wished to do so,” Magee said in a Sept. 22 email. “I’m not sure what type of evidence the family has that has not been given to the police already. Mr. Gray has never contacted us about evidence the family wants presented to the Grand Jury.”
Sharon Garner, right, and Regina Hamm protest in Ferguson, Mo. on Aug. 30 near the site of the Michael Brown shooting. (AP Photo/Bill Boyce).
Crump and Gray confirmed to TPM that they had not approached McCulloch’s office with any evidence that they might want the jury to see.
“We have not,” Gray told TPM. “Quite frankly, people don’t know what would be helpful to an investigation.”
But he was troubled that they had not been asked, at least as a formality, as of Sept. 22, nearly five weeks after the grand jury investigation began. McCulloch’s office has since said that the grand jury could last into January.
“The fact that we haven’t been approached for anything of evidentiary value is more socially troubling, than it is legally,” Gray said. “I would just think that you would expect to see more of a reach-out out of a concern for what occurred, seeing as though as this was a traumatic loss of life under very questionable circumstances.”
“With the prosecutor’s office being neutral, a neutral position would be at least, ‘My heart goes out to you.’ That just seems like the humane thing to do, a decent thing to follow up on,” he continued. “Unless you are aligning yourself for the person who every feels should be responsible for it. That’s the kind of the interpretation that folks walk away with from that behavior.”
So TPM followed up with Magee, the prosecutor’s spokesman, on Sept. 26. Magee said that, after TPM’s initial inquiry earlier in the week, he had reached out to Gray, but had not yet heard back from him. He seemed bewildered by what the attorneys were telling TPM.
“Gray has my cell and office numbers, as well as Mr. McCulloch’s office number. If he didn’t bring this to our attention how were we to know,” he said in another email. “I will contact him again. I left your number for him, he called you, but he still hasn’t reached out to us.”
About an hour later, Magee emailed TPM again and suggested that Gray and the Brown family had declined the opportunity to offer evidence for the grand jury.
“Just talked with Anthony Gray,” he said. “They have no requests for this office, he has been in contact with the mother of Michael Brown, and will call me if they have any requests.”
All that is clear after these weeks of investigation is the disconnect between the two parties. They both placed responsibility for reaching out on the other side. McCulloch’s office seems to believe they have made a good-faith effort to reach out to the Brown family. The Brown family, per their attorneys, feel otherwise.