Incarceration Nation

No Indictment of Killer Cop Wilson

Why no indictment was issued against the cop who killed Michael Brown: the problem and answer

By Kevin “Rashid” Johnson

“No indictment”—I already knew

It’s easy to say, after the fact, that I knew there would be no grand jury indictment against Darren Wilson, the white Missouri cop who killed New African/Black teenager Michael Brown in cold blood on August 9, 2014. But, truth be told, I did know it. And you’ll recognize how obvious the game was too, once I explain.

I recognized the game not just because the Amerikan criminal (in)justice and (selective) law enforcement systems work hand-in-hand against (not in favor of) people of color and the poor, but because of two major deviations from established grand jury procedure that were made by the St. Louis prosecuting attorney, Robert McCulloch, who was supposedly seeking the indictment against Wilson.

The red flags were the massive amount of “evidence” presented to the grand jury, but more specifically, that Wilson was allowed to testify before the grand jury. This never happens.

And I speak with the experience of a member of a class of people who have more than just a little experience with indictments, namely, U.S. prisoners. Most all of the criminal proceedings that landed each of us in prison were based on grand jury indictments, but, unlike Wilson, we were never allowed to testify before those grand juries. Why? Cuz that’s not how grand jury proceedings work. And I should know since over the years I’ve fought and beat some 16 indicted crimes representing myself. So I have a legal understanding of the process as well. But don’t just take my word for it, ask any attorney with experience in criminal law. S/he might do a bit of hemming and hawing and trying to rationalize what was done, but in the end they’ll admit it’s almost unheard of for a prosecutor to call the subject of a grand jury proceeding to testify before the jury.

The prosecutor’s game

Unlike a trial, a grand jury proceeding is not adversarial. Meaning it doesn’t function to have the jury consider both sides of a case. It is a summary proceeding that exists solely to hear a sample of what evidence the prosecution has collected which tends to show a crime occurred, without any consideration of the potential defendant’s side of the story, and thereupon determine if the prosecutor has enough evidence to show probable cause to believe the subject committed a potential crime. That’s it. The prosecutor presents only the most basic incriminatory evidence and never puts the potential defendant on, because unless the prosecutor is in effect using the potential defendant as her/his own witness (which is exactly what McCulloch did with Wilson), to do so would transform the grand jury proceeding into an actual trial which would compel a wide range of procedures and rights of the potential defendant to come into play.1

This is why McCulloch dispensed with another common procedure in such cases, namely, he never had Wilson charged and arrested on a warrant prior to supposedly seeking an indictment. Because, the moment Wilson was arrested, McCulloch would become his adversary (and could not advocate for him as he did in calling Wilson as his own witness to give his side of the story to make it conform to other evidence in a way that would exonerate Wilson). As Wilson’s adversary, McCulloch could only present such “evidence” as would paint Wilson’s actions in a criminal light to the grand jury. And if he were to call Wilson as a witness under these circumstances, Wilson would have to have his own attorney present to ensure he didn’t say or do anything to incriminate himself or sabotage his own defense. So he most likely would have been instructed by his attorney to say nothing by invoking his 5th Amendment privilege against self-incrimination.

So McCulloch took very deliberate tactical steps to ensure that he could advocate for Wilson rather than function as his adversary to the end of ensuring that no indictment would be issued.

And these major departures from established grand jury practice were made by a white prosecutor whose own father was not only himself a cop, but a cop who was allegedly killed by a Black man. So he had not just a professional bias in Wilson’s favor, but a personal one as well. So, when I heard on the news a few days before the verdict not to indict was announced, that Wilson had been allowed to testify before the grand jury, I knew, just like with the trial of George Zimmerman for the murder of Trayvon Martin, that the prosecutor was deliberately sabotaging the proceeding to ensure an outcome in favor of the cop (or cop wanna-be, as in Zimmerman’s case).

And you can bet every legal “expert” in Amerika recognized it too, including past Harvard law professor, Barack “uncle scam in Blackface” Obama, who implored everyone to accept the verdict cuz the rule of law had prevailed and the grand jury rendered a decision that it was its duty to make. Sadly, many of us oppressed people of color can’t get past our skin worship of Obama and recognize him for the imperialist running dog (a wolf in black sheep’s clothing) that he really is.

As for the grand jury’s duty, these bodies are actually the tools of prosecuting attorneys, who have almost absolute control over both the conduct of grand jury proceedings and over influencing these juries. This is why New York State Judge Sol Wachtler once admitted, “it’s so easy to get a grand jury to indict, they’d indict a ham sandwich if that’s what the prosecutor wanted.”

Then there’s the fact that grand jury proceedings lasted from August 20th to November 24th. As noted, prosecutors typically put only a small bit of evidence before grand juries, and only that which incriminates the potential defendant. Even University of Missouri Law Professor, Ben Trachtenberg, admits that McCulloch, “put on a much greater amount of evidence than we’re used to,” producing 24 volumes of evidence which included 5,000 pages of testimony from 60 witnesses (100 pages of which was Wilson’s testimony). In the “normal” proceeding, Trachtenberg said, “the grand jury can see evidence in a few minutes and take a vote.” As various legal experts concede, McCulloch’s method was to inundate the grand jury with so much information that it was overwhelmed and confused.2 I too recognized this, since, in a grand jury proceeding the jury is not guided by adversarial attorneys to pay attention to certain evidence and the implications of it as would occur in a trial.

So that now, Wilson’s testimony, which was not subject to cross examination to expose obvious lies and inconsistencies (such as his claim the he used his gun because he had no non-lethal options, which he obviously did—such as use of mace—which McCulloch never brought up), now stands as the official version of what happened when he killed Michael Brown. As the late Johnny Cochran pointed out and most criminal defendants know, cops almost instinctively lie in court. They do it because they feel compelled to validate their arrests and actions, and make them fit with the law to support the desired outcome. And they’re “comfortable lying in a courtroom because the system always tolerated [their] lying; judges look the other way and jurors [are] supposed to accept it.”3 And jurors do accept it, because the typical overwhelmingly white jury just doesn’t believe cops do bad things and are in almost visceral denial of prevailing institutionalized racism in Amerika, even as they entertain racist stereotypes, fears and caricatures of people of color. White Amerika has a very different experience with cops than people of color. Blacks and Browns especially. Indeed, Black parents across Amerika must take special pains to teach their sons to show special deference and passive body language when confronted by cops to avoid being beaten or killed, just as Blacks had to be trained to act when in company of whites during chattel slavery and open Jim Crow, also to avoid beatings and lynching.

In essence, the entire grand jury proceeding was staged to produce the very outcome that resulted, and in a society racially divided by policy, practice and design of those in power.

Towards a real solution

How absurd is it anyway to look for a savior in the very courts that we know and see everyday railroading people of color into prison at such astronomical rates, that they are recognized to be a continuation of both slavery and Jim Crow?4

Yet this is exactly what our frustrated youth are being misled to do (while being left in the crosshairs) by an old guard aspiring bourgeois civil rights misleadership, who can do nothing more than continue engaging in empty moralizing and playing bargaining-games with the very forces that are murdering our youth and bent on our suffering and destruction.

Indeed, every time I hear of these civil-rightists raising a hue and cry against yet another government outrage, I’m reminded of the words of Anthony Asadullah Samad, criticizing the ineffective civil rights advocacy tactics in the Black Commentator some years back:

“Whether it’s protest, negotiation, boycott or voter revolt (the latter two of which we rarely, if ever, use), watching Black advocacy is like watching re-runs of Sanford and Son; you know what’s about to come next—and what the line is going to be when Redd Foxx grabs his chest….Okay, this is where they march in. Now, they’re about to holler and scream, and give long speeches, watch’em. Here is where they put the community mothers up to cry, sigh, ain’t it sad? Now this is the part where they march out singing ‘we shall overcome,’ then they’ll go home and be quiet until the next time we get caught violating them or their interests. But the response will be the same.”

And we should remember that while these old tactics proved effective in dismantling the old Jim Crow laws of the rural South, they failed miserably in changing the oppressed conditions, including police murders and brutality in the urban communities of color. Indeed, these stark failures led to the demise and discrediting of the civil rights movement in the urban areas, which gave rise to youth-based, Black and Brown liberation movements, and struggles for socialism in Amerika in the 1960s-70s.

It was the ineffectiveness and failures of the civil rights movement to address urban suffering that resulted in the mass urban uprisings of 1964-1968. And each of those uprisings was triggered by police murders or beatings of urban Blacks, exactly as continues to occur today in the face of these fruitless civil rights tactics.

It was in response to just such conditions that the Black Panther Party took root and won broad support as a community-based revolutionary organization that brought real solutions to the oppressed communities and real challenge to the murderous police. It was actually in their response to a police killing of a Black male, Denzil Dowell on April 1, 1967 (a murder not very different from Michael Brown’s), that the Panthers brought an effective model of leadership and resistance to urban people. And one that also pointed out the futility of spontaneous mass uprisings. As Panther co-founder and Defense Minister Huey Newton pointed out:

“We are continuing to function in petty, futile ways, divided, confused, fighting among ourselves, we are still in the elementary stage of throwing rocks, sticks, empty wine bottle and beer cans at racist cops who lie in wait to murder unarmed Black people. The racist cops have to murder unarmed Black people. The racist cops have worked out a system for suppressing these spontaneous rebellions that flare up from the anger, frustration and desperation of the masses of Black People. We can no longer afford the dubious luxury of the terrible casualties wantonly inflicted upon us by the cops during these spontaneous rebellions….There is a world of difference between 30 million unarmed, submissive Black people and 30 million Black people armed with freedom and defense-guns and the strategic methods of liberation.”5

The Panthers instantly struck fear in the hearts of the murderous police and the centers of capitalist power in the U.S., and won allies across all exploited sectors of U.S. society: poor white hillbillies and working class whites and students, Mexicans/Chicanos, Puerto Ricans, Natives, antiwar activists, youth gangs, etc. But as an inexperienced youth organization, they were ill equipped to contend with or even recognize the dirty counter-intelligence tactics of the police, led and organized by the Federal government, which had coopted and infiltrated the civil rights movement. The government’s anti-Panther crusade applied devious no-holds-barred methods developed and refined from use in war and peacetimes against foreign “enemies” and political movements.

As a result, the BPP ended up internally split along antagonistic lines and critically wounded. But it gave us, by far, the best example and lessons of organized tactical resistance to the oppressive U.S. system, which we can continue to learn from and build on, and this is the basis of the work of the New African Black Panther Party—Prison chapter.

The same mass ferment and anger of our youth is evident and cries out for real solutions as it was during the old Panther era. And without a genuine revolutionary organization and leadership it will be coopted and converted into a tool of the old conformist collaborationist civil rights agenda, that has us looking to our oppressors to be our savior instead of ourselves, or it will explode into destructive spontaneous uprisings which the pigs actually want, because it polarizes New Afrikan/Black and white society instead of allying us, and gives them grounds to justify their murderous and militaristic practices that we are rising against.

Dare to Struggle Dare to Win!

All Power to the People!

1 Now, if the prosecutor knows or believes no crime was committed, then there exists no basis at all to present a case to a grand jury. To do so would be an illegal misuse of the grand jury process and to convert the process into something other than its intended purpose.

2 See Marisol Bello et al., “Grand Jury Charges Easy, Except Against Police: Prosecutor Piled on Members An Extreme Amount of Info,” USA Today, p. 3A, November 26, 2014.

3 Johnny Cochran, A Lawyer’s Life, p. 111.

4 See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, (The New Press, NY, 2010/2013).

5 Huey P. Newton, “In Defense of Self Defense,” Black Panther, June 20, 1967, pp.n3-4.