Michael Brown, Warren McCleskey, and Global Warming

by Michael Dorf

I have now read a large number of excellent (and an even larger number of less-than-excellent) analyses of the grand jury's non-indictment of Darren Wilson for killing Michael Brown. I confess to not having sifted through the gigantic record of evidence presented to the grand jury. I will say that the sheer size of that record supports the charge by critics that prosecutor Bob McCulloch was not treating this as an ordinary case in which he selectively presents evidence tending to establish probable cause to indict. Indeed, McCulloch does not even deny this accusation. I thus share the crtitics' view that a more zealous prosecutor could have pretty easily gotten an indictment here.

On Tuesday, a student asked me whether McCulloch's proceeding in the way he did was defensible. I said that the best defense of his conduct would go like this: It's true that a grand jury is usually a rubber stamp for a prosecutor but in an ordinary case, a prosecutor first makes a decision whether to seek an indictment (via grand jury or, where allowed, by other means). Certainly there are many cases in which a zealous prosecutor could secure an indictment from a grand jury but does not seek one because the prosecutor concludes, based on the evidence or other legitimate factors, that the suspect should not be prosecuted. However, in a high-profile case such as this one, McCulloch could not simply refuse to indict; thus, he enlisted a grand jury to make the decision for him by giving it all of the evidence.

I now think that's not a very good defense, and that McCulloch should have stepped aside to allow someone else (perhaps a special prosecutor) to make a more conventional case to a grand jury. But I also think it's a mistake for observers to focus too much on whether or not the less-than-vigorous presentation of the state's case and the non-indictment decision were defensible. If conflicting evidence meant that Wilson would have been acquitted after being indicted, then maybe the non-indictment is itself a sideshow.

Suppose that a petit jury presented with all of the evidence would have found reasonable doubt and acquitted Wilson following what might have been a televised trial. On the one hand, Brown's family and Ferguson's beleaguered citizens would have had their day in court. But on the other hand, they would find themselves more or less where they are now. Would the outrage over the acquittal of the officers who beat Rodney King, or over the acquittal of George Zimmerman in the Treyvon Martin killing, have been worse if instead of acquittals those cases had produced non-indictments instead? It's hard to imagine how. Yes, it is different to say that there isn't even probable cause than to say that there is reasonable doubt, but that's a nicety for us lawyers, not for the people's sense of justice.

Numerous broader lessons can be, and are being, drawn from the non-indictment of Wilson. Most are understandably critical. On the more hopeful side, my colleague Joe Margulies wrote an excellent Verdict column in which he pointed to the emerging bipartisan consensus that we need to scale down mass incarceration as a way out of the sorts of police/citizen relations that give rise to incidents like the killing of Brown.

Here I'll add one more lesson, or at least a simile. The killing of Brown is like a severe storm: One cannot say for certain that this particular storm would not have happened but for global warming, but one knows that global warming makes storms of such severity more likely overall. Just substitute "racially biased policing" for global warming. (At least half the credit for the simile goes to Professor Buchanan. I was already thinking along these lines but he came up with the particular comparison in a private email.)

The American legal system sometimes has difficulty combining information about specifics with general patterns--especially when race is involved. Consider the Supreme Court's 1987 decision in McCleskey v. Kemp.  McCleskey, an African American man, was convicted and sentenced to death for his part in a robbery/killing of a white police officer. His lawyers presented evidence in the form of a study by Iowa Law Professor David Baldus that showed that victim race played a large and statistically significant role in deciding whether a Georgia defendant receives the death penalty, even when controlling for over 200 potentially salient factors. Interestingly, perpetrator race was not a significant factor by itself (perhaps because most crime is intra-racial) but African American defendants convicted of killing white victims were most likely to receive a death sentence.

Justice Powell's opinion for the Court discounted the Baldus study. The Court noted some criticisms of the study that surfaced during the district court proceedings (where Baldus and others testified), but this was not the main reason that the Court ruled against McCleskey's challenge. Instead, the Powell opinion said that even assuming that the Baldus study clearly proved the racial effects in general, his equal protection claim failed because he offered "no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence." The Court acknowledged that in other contexts it allows prima facie proof of discrimination to be offered through statistics but thought that the death penalty was somehow different, in part because the state was given "no practical opportunity to rebut the Baldus study." But if that was problematic, it's difficult to see why the right answer wasn't to remand for such an opportunity in the district court.

Here's a way of thinking about what's wrong with the Court's analysis in McCleskey. Suppose that you want to toss a coin to decide some question--say, which of two children will get an indivisible treat. You reach into a bag of 100 coins and randomly select one. Without looking at the coin, you toss it. It lands on heads. Was this a fair procedure? Well, suppose that 20 of the coins in the bag were normal coins but the other 80 were two-headed coins. Absent any additional information, surely the answer is that the procedure was unfair, even though it's possible that you tossed a normal coin. The Powell opinion in McCleskey does not simply say that the coin-toss could have been fair so let's look to see whether the particular coin tossed was two-headed or normal; it says that because it might have been a normal coin, there's no need to worry about the fact that it came from a bag that mostly contained two-headed coins.

To be sure, there's an alternative rationale in the McCleskey case that may have been leading the Court to feign innumeracy. The Court says that "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system," and that, therefore, his "arguments are best presented to the legislative bodies." I'm not persuaded by the McCleskey opinion that the invalidation of a death sentence is an inappropriate response to general proof of racial bias in capital sentencing. However, a better argument can be made that it's improper to indict or convict a police officer of murder or manslaughter based on statistical evidence of systemic bias in the face of considerable (albeit contested) specific evidence that he acted lawfully.

I do share Justice Powell's conclusion that the general fact of racial bias in the criminal justice system cries out for a legislative solution. That fact was painfully obvious in 1987, when McCleskey was decided, and it remains painfully obvious today. Given the persistence of the problem, it is easy to understand (and share) the frustration of minority citizens in Ferguson and elsewhere.