Is Darren Wilson receiving affirmative action?

Blanche B. Cook

Is Ferguson, Mo., police officer Darren Wilson receiving affirmative action, special treatment or an unfair advantage in the grand jury proceedings in St. Louis County?

Perhaps we should ask the drug-dealing defendants the St. Louis County Prosecutor’s Office commonly indicts. Perhaps we should ask the last 200 black defendants that office indicted.

We should ask them whether the prosecutor’s office offered them any of these benefits in their grand jury proceedings: the privilege of testifying; the advantage of exculpatory information and possible defenses; the benefit of having the prosecutors provide corroborating evidence, such as forensics reports or coroner’s examinations, that verified their stories and claims of innocence; the edge of a narrative that highlights their blamelessness and sublimates their guilt; and legal instructions to match the evidence to sundry possible charges, as opposed to a recommendation of what should be charged.

No doubt Wilson, who shot and killed unarmed black teen Michael Brown, has received more favorable treatment than any target of any investigation in St. Louis County history.

The breadth of exculpatory materials — used to prove someone is free from blame — the prosecutors have presented to the grand jurors in Wilson’s case, let alone the abandonment of standard grand jury protocols, is surprising if not shocking.

No law requires the prosecutors to submit possible defenses to the grand jury. The prosecution’s decision to do so remains unexplained, particularly in light of the relatively simple task before the grand jury.

The 12 grand jurors in Wilson’s case — six white men, three white women, two black women and one black man — should be deciding whether there is probable cause to believe a crime occurred, not guilt or innocence beyond a reasonable doubt. The latter is left to a trial jury, if the prosecution has any real interest in prosecuting Wilson. The grand jury should address indicting Wilson and vindicating the interest of the public, not criminalizing Brown and defending the interest of Wilson.

Probable cause is a relatively low evidentiary standard. In Wilson’s case, the probable cause determination should be simple: (1) there is a dead body; (2) that dead body was unarmed; (3) that dead, unarmed body was found at least 30 feet away from Wilson’s patrol vehicle; (4) there are at least four witnesses that say Wilson shot Brown after Brown surrendered; and (5) there is a coroner’s report corroborating the witnesses’ testimonies. That is what probable cause looks like.

Wilson’s case differs from the standard probable cause inquiry. Prosecuting Attorney Robert P. McCulloch proclaimed from the outset that his office would be “presenting absolutely everything” to the grand jury, including eyewitness testimony of the fatal confrontation and forensic reports that might be diametrically opposed. On top of this, according to The New York Times, instead of recommending a charge, as they usually do, the prosecutors are providing jurors with definitions of possible crimes so they can decide what charges, if any, are warranted.

Given the prosecution’s seemingly zealous defense of Wilson, the public should have an opportunity to examine the grand jury transcripts for the justification for Wilson’s special treatment. The public should get to see what prosecutors said to grand jurors, provided that the prosecutors exercised their discretion in having all of their remarks and instructions to the grand jury recorded.

The favorable treatment Wilson has thus far received deserves strict scrutiny.

Blanche B. Cook is an assistant professor at Wayne State University Law School and former assistant U.S. attorney with the U.S. Department of Justice.

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