The decision by a Missouri grand jury not to indict Police Officer Darren Wilson is stirring controversy not just on urban streets but also among legal scholars.
But others say the process appears to have reached the correct conclusion based on a wide-ranging review of the available evidence.
Debate over the grand jury’s decision emerged even as scholars and the public have only begun to cull through the details of nearly 5,000 pages of transcripts released by St. Louis County Prosecutor Robert McCulloch after the decision was announced Monday night.
Mr. McCulloch himself noted the conflicting nature of the witness testimony in the case, with varying accounts of things, such as whether Mr. Brown assaulted Officer Wilson through a squad car window, and whether Brown was moving aggressively toward Wilson when the fatal shots were fired.
Wilson confronted Brown and a friend on Aug. 9 when the two were walking in a Ferguson street. The officer identified the young men as possible suspects in a theft that had occurred minutes earlier nearby.
"Murky cases get charged all the time, with witnesses differing, and even with inconsistent statements and forensics," David Rudovsky of the University of Pennsylvania told the Philadelphia Inquirer.
“Why such care in this case - but not in cases not involving police as possible defendants?" the law professor asked.
Some critics of the grand jury decision took the point a step further, arguing that McCulloch was more interested in shielding law enforcement – perhaps due to police ties in his own family tree – than to impartial justice. (They point out that McCulloch’s father was a police officer killed in the line of duty.)
By all accounts, this particular grand jury proceeding was unusual in several respects. Prosecutors didn’t recommend a particular course of action, and the amount of evidence presented was particularly thorough.
McCulloch defended the process as yielding an objective decision on a case that was known to be politically sensitive. Racial tension spilled into Ferguson’s streets after the August shooting, in a mostly African-American community where the police force is largely white.
Critics say McCulloch and his team abdicated the usual prosecutorial role.
“If they don’t present the evidence in a manner to secure an indictment, then there won’t be an indictment,” Anthony Gray, an attorney for Brown’s family, said in televised comments after the grand jury announcement.
The National Bar Association, a group representing predominantly African-American attorneys and judges, issued a statement “questioning how the Grand Jury, considering the evidence before them, could reach the conclusion that Darren Wilson should not be indicted and tried...”
But other legal experts are coming to the defense of McCulloch and the grand jury.
Some say that, beyond questions of consistency among the witnesses, some compelling evidence lines up with the view that Wilson had reason to feel a need for self-defense.
L. George Parry, a Philadelphia defense lawyer quoted in the Inquirer article, said a bullet entrance wound in the crown of Brown's head suggested the 18-year-old was charging forward, as Wilson testified, when the fatal shots were fired.
Some legal scholars also say the anomalies of this grand jury process shouldn’t be viewed with suspicion.
True, grand juries almost always return a decision to indict rather than a refusal to do so. But Paul Cassell, a criminal law expert at the University of Utah, said that’s because in most cases a crime clearly occurred and prosecutors believe they have a case to bring.
In such instances, a grand jury’s role can be relatively brief and the evidence they review will be considerably less than what eventually ends up being presented at a trial.
But this case, Mr. Cassell opined in a blog post on the Washington Post website, was the “orange” to all those usual “apples.” Here the grand jury had a difficult task of determining if there was probable cause that a crime had been committed in Brown’s death.
Some critics of McCulloch say he left the grand jury to wrestle with this beast – reams of evidence and no request from prosecutors for an indictment – precisely because he didn’t want an indictment to occur.
Benjamin Crump, another attorney for Brown’s family who spoke alongside Mr. Gray, urged a nationwide law be passed in the name of Michael Brown, mandating the use of body cameras by police across America.
“We won’t have to play this game of witness memories and secret grand jury proceedings,” he said.
Body cameras wouldn’t really obviate the need for grand juries. But it would bring an important new form of objective evidence to cases like this one.
The debate over the grand jury decision is bound to continue to evolve in coming days.
Many experts on criminal justice say that, beyond the specifics of Brown’s death and the grand jury investigation, the case has reminded America of the sense of a gulf that lies between many black Americans and law enforcement.
By Wilson’s own testimony, released as part of the grand jury transcripts, he felt that the neighborhood where he confronted Brown was not friendly to police.
And the street protests have revealed the distrust that many Ferguson citizens feel toward law enforcement.
“We are in no position to second-guess a group of citizens who worked hard to find probable cause in this case,” Drexel University legal scholar Donald Tibbs said in a statement emailed to reporters after the decision. But he pointed to a history of racial biases in criminal justice, and a state of “suspicion and mistrust [that] undermines the very legitimacy of our system of justice.”
McCulloch himself, while aligning himself with the grand jury’s decision, voiced support for broader efforts at improved policing and justice.
“No young man should ever be killed by a police officer,” he said, and “no police officer should ever be put in that position.”