By Chris Hoenig
Ferguson Police Officer Darren Wilson, who shot and killed an unarmed Michael Brown on Aug. 9, has testified in his own defense before a grand jury.
Wilson, according to the St. Louis Post-Dispatch, spent four hours on the stand and was “cooperative” with questions from prosecutors. He has also reportedly spoken with St. Louis County prosecutors on two other occasions, and with federal prosecutors on a third.
The decision to have or allow Wilson to testify is being derided by some, who believe St. Louis Prosecutor Robert McCulloch is trying to throw the case and prevent Wilson from being charged.
Defendants rarely ever attend a grand-jury proceeding, much less testify in one. A long-running joke is that grand juries are so one-sided that they would “indict a ham sandwich.” In fact, the handbook for federal grand jurors details the lengths attorneys will go to warn defendants of the potential legal complications that can arise at trial due to testimony delivered before a grand jury.
“Because the appearance of an accused before the grand jury may raise complicated legal problems, a grand jury that desires to request or to permit an accused to appear before it should consult with the United States Attorney and, if necessary, the court before proceeding,” the handbook reads. “Even if the accused is willing to testify voluntarily, it is recommended that he or she first be warned of the right not to testify. Also, he or she may be required to sign a formal waiver of this right. The grand jury should be completely satisfied that the accused fully understands what he or she is doing.”
Of course, those potential legal complications—such as poking holes in trial testimony using the defendant’s own words from grand-jury testimony—are irrelevant if the accused isn’t charged by the grand jury.
“I would only consider allowing my client to testify at a grand-jury proceeding if I was convinced that the prosecutor presenting the evidence to the [grand jury] was convinced that his testimony would help them reach the decision not to indict,” veteran defense attorney John Rogers said.
A witness’ own attorney is not allowed to be present during grand-jury testimony.
In New York City, the rates of suspects taking the witness stand before a grand jury spiked in the early 2000s, reaching upward of 15 percent of cases (showing just how rare testimony from the accused is). In more than half of those cases, the grand jury did not indict the accused.
Wilson’s testimony is just the latest move that is leading local residents to believe McCulloch is trying to avoid sending Wilson to jail.
McCulloch’s involvement in the case has raised serious questions because of his family history—his father was a police officer killed in the line of duty—and a checkered past that indicates a potential bias in favor of police officers in deadly force incidents.
The decision to convene a grand jury angered many, especially since McCulloch could have filed charges on his own. Instead, he has kept his vow to dump mountains of evidence and testimony on the panel, but has reportedly not given the jurors any direction to use in analyzing the materials for charges.
“Absolutely everything will be presented to the grand jury, every scrap of paper that we have, every photograph that was taken, every bit of physical evidence that has been gathered, every video clip, anything that we can get,” he said in announcing the proceedings in August. “Every witness who has anything at all to say will be presented to the grand jury.”
But Tiffany Mitchell, who has spoken publicly about what she witnessed that day, has yet to be subpoenaed to testify, according to her lawyer, Peter Cohen.
McCulloch’s office has revealed that the prosecutor has ordered audio recording and transcripts of the usually secret proceedings to be made and that he will release them publicly should the grand jury decline to indict Wilson. But McCulloch’s office lacks the authority to actually release the materials—that move would have to be signed off by a judge, who could say no. Grand-jury materials are so rarely released that even scholars researching historical cases are almost never granted access.
Protesters have called for Wilson’s arrest since he shot Brown at least six times on Aug. 9. Tensions between the mostly Black community and the almost entirely white police force rose as only selected information was released publicly during the investigation (such as information about a robbery that was ultimately irrelevant to the confrontation being released at the same time as Wilson’s identity was revealed), and protests escalated further as police turned out in full military gear, pointing high-powered rifles at unarmed demonstrators.
Wilson is one of 50 white officers on the 53-man Ferguson police force. He was on the job for three years at the time of Brown’s killing. Prior to joining the Ferguson PD, Wilson had been a police officer in nearby Jennings, Mo.—another town where the majority of the population is Black, but the police force was almost entirely white.
Racial tensions between the police and residents there were so high that the city council ultimately disbanded the police department, firing the entire force and rebuilding it from scratch.