Have you ever seen a prosecutor less interested in doing his job than Bob McCulloch? Prosecutors who work in a grand jury jurisdiction have a unique and powerful weapon.
In California, the preliminary hearing—where a court decides whether there was probable cause to support the charges—is contested, meaning a few things. First, because it’s a contested hearing, the defense is allowed to cross-examine the prosecution’s witnesses and call its own witnesses. Second, it’s in front of a judge, who’s less prone to making mistakes about how the law applies than a jury composed of lay-people. The preliminary hearing system makes the prosecution work harder to prove its case.
Which brings me back to the grand jury. Imagine: no right of cross examination, no judge, no right for the defendant even to be there, and when the defendant is present, no right to have counsel in the room. There’s a reason why the former chief judge of the New York Court of Appeals said a grand jury could be convinced to indict a ham sandwich: the prosecutor is in complete control and uses that control to get an indictment most of the time.
And yet, McCulloch didn’t use the awesome power of the one-sided grand jury to zealously represent the state. If anything, he used that power to zealously represent Officer Darren Wilson. One could be forgiven for forgetting that McCulloch’s job is to secure an indictment on behalf of the state, rather than trying to exonerate Wilson.
First of all, the prosecutor’s instructing the grand jury on possible defenses doesn’t make sense. It’s the defendant’s burden—not the prosecution’s—to raise those defenses and prove them to the requisite level. Second, in reading through the grand jury transcript, the folks at Slate noticed that the prosecution cross-examined more harshly those witnesses who suggested that Michael Brown wasn’t so much of a threat that he needed to be shot. Third, he brought Wilson in to testify. This isn’t unusual, per se, but it’s noteworthy in that Wilson got a chance to tell his story, on his terms, with an absence of cross-examination in the face of a story that multiple commentators have called out for its incredulity.
McCulloch appeared to be working his darnedest to convince the jury not to indict Wilson, first by putting the issue of affirmative defenses into its mind and then by vigorously cross-examining witnesses who contradicted the prosecutor’s theory of the case. These are the actions of a defense attorney, not a prosecutor—at least not a prosecutor who’s serious about securing an indictment. They are, however, the actions of a prosecutor who wants to go through the motions of a grand jury hearing while placing his thumb on the scale.
Obviously, it’s speculative that McCulloch wanted Wilson to escape without an indictment. No one knows what Bob McCulloch wants, but the outward appearance is that McCulloch wanted this case tried before the grand jury (which isn’t the object of a grand jury hearing), and he was more zealously representing the defendant than the state.