Justice Scalia’s 1992 Ruling Shows How The Ferguson Grand Jury Verdict Is Bullsh*t

Many are upset about the grand jury’s decision not to indict Officer Darren Wilson for the murder of unarmed African-American teenager Michael Brown, and it seems that Supreme Court Justice Antonin Scalia is among them.

Scalia may feel that the Voting Rights Act, which ensured that various states would not enact measures to prevent African-Americans and other “undesirables” from voting, is a “perpetuation of racial entitlement,” (until it was gutted by the Supreme Court, that is), but when it comes to nine white people and three African-Americans allowing Wilson to walk without a single charge Scalia is not quite on board — at least, not according his explanation of the role of a grand jury in the 1992 Supreme Court case of  United States v. Williams.

ThinkProgress reminds us that Scalia wrote:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Of course Wilson did testify for a number of hours, possibly swaying the grand jury’s opinion with a fanciful tale of a gigantic Hulk Hogan demon who launched a devastating assault on his miniscule, helpless self (both Wilson and Brown are the same height).

Wilson told the jury that Brown landed shattering blows to the right side of his jaw as the officer sat in the driver’s side of his SUV. The devastating assault Wilson claims to have suffered left a minor bruise on Wilson’s cheek. Wilson says that Brown lashed out with both arms while holding a box of stolen cigarillos, before handing them off to friend Dorian Johnson and continuing the beating.

A CNN legal analyst has decried Wilson’s testimony as “not credible,” while other analysts have questioned the lack of cross-examination of many of Wilson’s far-fetched claims.

The New York Times notes that McCulloch presented evidence with no intent to indict Wilson.

The officer’s testimony, delivered without the cross-examination of a trial in the earliest phase of the three-month inquiry, was the only direct account of the fatal encounter. It appeared to form the spine of a narrative that unfolded before the jurors over three months, buttressed, the prosecutors said, by the most credible witnesses, forensic evidence and three autopsies.

But the gentle questioning of Officer Wilson revealed in the transcripts, and the sharp challenges prosecutors made to witnesses whose accounts seemed to contradict his narrative, have led some to question whether the process was as objective as Mr. McCulloch claims.

Lawyers for Mr. Brown’s family, who maintained all along that Officer Wilson should be charged with a crime so he could be tried in public, said that Monday’s decision and the voluminous transcripts only reinforced their suspicions.

“This grand jury decision we feel is a direct reflection of the sentiments of those who presented the evidence,” Anthony Gray, Brown family lawyer, said on Tuesday. “If you present evidence to indict, you get an indictment. If you present evidence not to indict, you don’t get an indictment.”


In some cases the questions seemed designed to help Officer Wilson meet the conditions for self-defense, with a prosecutor telling him at one point: “You felt like your life was in jeopardy” followed by the question, “And use of deadly force was justified at that point in your opinion?”

ThinkProgress wisely suggests that we contrast Scalia’s 1992 opinion to what the grand jury was told in the case of Michael Brown:

And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.

Wilson’s testimony, the cherry-picked evidence, and the light questioning all helped persuade the grand jury that Wilson acted in lawful self-defense. The lack of cross-examination, couple with these things and other aspects of the case, effectively treated the grand jury as the trial jury with no equivalent of a prosecuting attorney.

“[McCulloch] put the grand jury in the role of being a trier of fact, which is not its role,” Thomas Jefferson School of Law professor and former president of the National Lawyers’ Guild Marjorie Cohn explained. “The grand jury was put in the position of basically being a jury, but in a one-sided, closed proceeding. The only people inside the grand jury room are the grand jury and prosecutors.”

Reading through the transcripts provided after this failure of the justice system, it feels like Wilson’s defense attorney actively endeavored to convince the jury of his client’s innocence.

Associate professor Susan McGraugh of St. Louis University wondered if the grand jury was sent a message that McCulloch did not want to indict.  “His duty is not to be a defense attorney. His duty is to prosecute people who break Missouri law,” she said.

“The prosecutor did not want an indictment, and he passed the buck to the grand jury to make that decision,” Cohn, “It was clear the prosecutor was partisan in this case, and not partisan in the way prosecutors usually are, which is to get people indicted.”

Cohn criticized how the announcement was made, almost as though McCulloch was attempting to justify his actions.  “In 98 percent of cases, the prosecutor would just announce the grand jury decision and that’s it,” she said. “He would not characterize the evidence defensively, or attack the media,” she said of McCulloch’s handling of the way the results were presented to the public.

McGragh was also critical of the way McCulloch handled the media. “Bob McCulloch took a very defensive posture,” she said. “It was a poor choice to be so confrontational in presenting a grand jury verdict that he had to know would upset a large number of people. He should have left out the editorializing.”

The lack of an indictment is rare, as almost all grand jury proceedings result in an indictment. However, it is significantly less likely that one will indict a police officer — something else of which McCulloch is surely well-aware.