Step Off! Magazine

For the past several years, police in the U.S. have come under an extreme amount of scrutiny and criticism in the public eye, in the wake of numerous high profile police killings of African-American citizens, such incidents include, but are by no means limited to Oscar Grant, Aiyana Jones, Eric Garner, Mike Brown, Tamir Rice, Freddie Grey, Walter Scott, Sandra Bland, Alton Sterling, Philando Castille and literally too many more for me to list all here. All of these events, in conjunction with other documented instances of police brutality and violence, have sparked countless protests in various cities and states across the entire country questioning the legitimacy and integrity of not just police departments nationwide but the institution of U.S. policing as a whole.

Even prior to these highly publicized police killings very few would argue the fact that it is extremely difficult to convict police officers in this country. The conviction of an officer is exceedingly rare even when there are an overwhelming amount of witnesses and video footage of an incident contrary to an officer’s testimony, and even then, police officers are given an immense amount of leeway, rarely facing justice in the wake of misconduct and unjustified shootings. In fact, according to the Huffington Post since 2005, there have only been 13 police officers convicted of murder or manslaughter in fatal on-duty shootings, according to data provided by Philip Stinson, an associate professor of criminology at Ohio’s Bowling Green State University.

While many shootings may be justified, these suspiciously low conviction rates for on-duty deaths involving police officers may have some of you asking, how is this even possible? The sad reality is the fact that very few of these incidents even with an overwhelming amount of evidence to the contrary ever go to trial and even in the event that a case actually does somehow manage to go before a judge and jury there are many, many obstacles that can potentially derail justice. One of the biggest obstacles in the U.S. which often contributes to these miscarriages of justice when police are involved in brutality, misconduct and/or blatant use of disproportionate force is the grand jury system, which many cases never make it past.

For those unfamiliar, the grand jury is a very secretive process that differs greatly from that of a trial jury. The intended purpose of a grand jury is not a process that involves the finding of guilt or punishment of a party, but instead, a prosecutor is supposed to work with a grand jury to decide whether enough evidence exists to bring criminal charges or an indictment against a potential defendant which are usually reserved for serious felonies. Grand jury members may be called for jury duty for months at a time (as in the case of the Mike Brown killing in Ferguson, Missouri), but only need to appear in court for a few days out of every month. Regular court trial juries are usually 6 or 12 people, but in the federal system, a grand jury can be 16 to 23 people.

However, in light of recent killings at the hands of police, there are many glaring flaws in the grand jury process that have been brought to the public’s attention which disproportionately tip the scales in the favor of cops and police departments. For example, during the proceedings, there is no judge present in a grand jury. Likewise, there is also no defense attorney or even an attorney to advise witnesses, nor is there cross-examination of any sort to challenge the integrity of witness testimony. Furthermore, grand jury proceedings are extremely secretive and are kept away from the public with the utmost of secrecy; there is no first amendment right of public access to any grand jury proceedings. Details of proceedings are rarely released to the public, if ever and even if they are it is usually only under the most dire of circumstances. With the exception of witnesses, participants are forbidden from disclosing any matters related to the grand jury, even after the grand jury’s activities have concluded. Many, however, contend that this practice of secrecy surrounding grand juries only protects the police and does absolutely nothing to foster justice. Likewise, it does not bode well for police depts. across the country some of which already have a nasty, contentious decades-long reputation of covering-up their crimes when caught harassing and brutalizing African-American and Latino communities. For many communities, the refusal to bring up charges against officers who acted questionably only to forever lock away the proceedings concerning the case is far too much to ask. With already strained relations between police depts. and the communities they serve, the repeated refusal to even so much as indict officers even under extremely questionable circumstances only to be veiled in perpetual secrecy has only further fostered an atmosphere of suspicion and mistrust between the police and the communities that they serve which threatens to compromise the integrity and legitimacy of the justice system.

On top of all of this, police depts. are allowed to bring in ‘expert witnesses’ who are trained to present literally almost any situation as a potential threat to police officers. For example, Dr. William J. Lewinski, runner of the Force Science Institute, has testified in hundreds of cases when police officers have shot and killed people under questionable circumstances. Countless times when cops have killed people under these suspicious circumstances Dr. Lewinski is often the man brought in to justify their actions to a grand jury. In fact, according to a 2015 New York Times article Lewinski is “among the most influential voices on the subject, he has testified in or consulted in nearly 200 cases over the last decade or so and has helped justify countless shootings around the country”. However, much of Lewinski’s testimony has come under fire and been chalked up to being junk science by fellow psychologist who question the reliability of his research on the grounds that since Lewinski has only published his research in police magazines instead of behavioral science journals, and that they have never been subjected peer-review study, the long-time gold standard for validity in scientific findings. In essence, expert witnesses such as Lewinski are being paid by police departments to peddle shaky, unscientific opinions to mislead juries convincing them that officers are actually in fear of the lives (no matter how absurd), creating enough reasonable doubt to allow cops to walk.

All of this aside, at the end of the day, grand jury proceedings are fully the prosecutor’s show and the prosecutor can orchestrate the proceedings to achieve almost any results they seek. In fact, Sol Wachtler, a former chief judge of the New York State Court of Appeals, once famously commented that prosecutors have so much influence over grand juries that by and large, they could get one to “indict a ham sandwich”. So given the relative ease, it takes to get an indictment at the end of the day, it’s the prosecutors who ultimately hold the reigns in regards to what direction they’ll steer grand jury proceedings. And this can become a very big conflict of interest, especially with prosecutors and district attorneys with close ties to the police who can potentially purposely derail cases involving police officers that they don’t want to prosecute for a number of personal reasons. A prime example of this was in the case following the killing of Michael Brown, an African-American teenager by officer Darren Wilson in Ferguson Missouri on August 9th, 2014. St. Louis County Prosecuting Attorney Robert P. McCulloch was tasked with the duty of overseeing the grand jury process of the case. However, it became a highly contested issue of not only the fact that McCulloch came from a family with deep police ties (McCulloch’s mother, brother, uncle and cousin all worked for the St. Louis police department) but his police officer father was also killed in the line of duty when McCulloch was 12. Before losing his leg to a rare type of bone cancer, McCulloch wanted to become a police officer like his father, even stating in an interview with the St. Louis Post-Dispatch “I couldn’t become a policeman, so being county prosecutor is the next best thing”.

Even prior to the Brown case, McCulloch was no stranger to controversy. 14 years prior, in 2000, McCulloch had also opted not to charge two undercover drug officers who shot and killed two unarmed black men which further raised doubts about his objectivity in deciding whether Darren Wilson should have been prosecuted for the killing of Brown.

Needless to say almost from the beginning there were doubts about McCulloch’s ability to be impartial in the case given the circumstances and there were calls from the community to have him removed from the case all together immediately. Even Missouri State Sen. Jamilah Nasheed started an online petition calling for a special prosecutor to be appointed which received 117,834 signatures. However, Missouri Gov. Jay Nixon said he wouldn’t remove McCulloch, pointing out that it would be easy for McCulloch to make the decision himself to step aside. Despite all these many clear conflicts of interest, McCulloch adamantly refused to recuse himself from the case. The controversy around McCulloch does not end there either, following the announcement of a non-indictment in the Brown case McCulloch was accused in a report published by The Smoking Gun for allowing Sandra McElroy or “Witness 40” as she’s referred to in the grand jury material to testify at the proceedings. McElroy claimed that she had witnessed the altercation between Brown and Wilson on August 9th and testified to the grand jury that she saw Michael Brown pummel Wilson before charging at him “like a football player, head down”. McElroy’s claim became a narrative that embedded itself in the case which many Wilson supporters touted as proof that directly corroborated the officer’s version of the confrontation. However, it was later revealed that McElroy not only was nowhere near the scene of the altercation on August 9th but she was a bipolar woman with a criminal past, had a history of making racist remarks and had already once before inserted herself into another high-profile criminal case in St. Louis prior. Even though McElroy’s claim was met with skepticism by investigators, she was still somehow allowed to testify before the grand jury. McCulloch even stated in an interview with the local radio channel KTRS 550 defending his decision to let McElroy testify stating “I thought it was much more important to present anybody and everybody… and some, yes, clearly were not telling the truth, no question about it.”. And here is the problem why not only the residents of Ferguson had zero confidence in the justice system but many communities of color across the nation share the same sentiments when an attempt is made to prosecute officers. Time and time again, despite calls from the community their cries for transparency and impartiality were ignored by the courts. First, appointing McCulloch to prosecute the Brown case was a clear and blatant conflict of interest. From McCulloch’s desire to once become a police officer, to his deep family history with policing, his refusal to bring charges in a prior questionable shooting, all the way up to the on-duty death of his father; any reasonable human being would be able to conclude that it would be impossible for McCulloch to render impartial judgment in the Brown case. Yet despite the national attention the case had garnered, the courts took no action whatsoever to remove McCulloch from the case and ensure that a more suitable replacement was appointed to take his place. The fact that McCulloch not only refused to recuse himself from the case even after deafening opposition from the community, but the fact that he allowed a mentally incompetent woman who clearly wasn’t present at the scene of the crime to blatantly lie before and influence the actions of the grand jury clearly shows not only did McCulloch never have any intention of bringing up charges against Darren Wilson he never had any intention of seeking justice for Brown and his family from the very beginning. Despite all of these red flags, along with others that manifested themselves later on the community’s call for transparency and oversight all fell on deaf ears. And the Michael Brown case is by no means unique by any stretch of the imagination either, from Eric Garner to Tamir Rice many, many cases where non-violent individuals were killed by overly aggressive police officers have been stone-walled by grand juries leaving the public in the dark as to the justifications as to why officers were never charged. In spite of this slew of setbacks and non-indictments, the tides of change are slowly shifting and there is a small amount of progress being made in certain corners of the country. According to Mother Jones in 2015 California became among one of the first states in the nation to do away with the grand jury system after Governor Jerry Brown signed a measure that prohibited the use of secret grand juries to weigh in on cases involving excessive or deadly force by law enforcement.

And in another 2015 article from The Mercury News summed up the new measure stating “under the ban, district attorney’s starting next year will be required to weigh the evidence against police officers and decide whether to file criminal charges, as they do in the vast majority of all cases…. a judge then hears from both prosecutors and defense attorneys at a preliminary hearing before ruling whether the matter should go to trial… district attorneys whose decisions are questionable will be accountable to voters”.

Now on paper, policies like this and others similar to those passed in California sound like progressive forward-thinking ideas that in theory should lead to more objectivity when considering to press charges against officers. However, unfortunately leaving prosecution solely in the hands of District Attorney’s is highly problematic in and of its own right and brings its own long extensive list of problems as well. These changes, while progressive reveal another deeply troubling issue which is the fact that police and district attorneys work extremely close with one another. Just like many prosecutors, the incestuous relationship district attorney’s offices have to police departments are a clear conflict of interest that all too often impedes and derails justice.

Join me next week as we explore the deep ties between police and district attorneys, and what the public can do to mitigate this toxic lapse of affairs.

Photo Courtesy: Roberto Camacho at the Press Release in El Cajon on September 28th, 2016