Playing ‘Find the Lady’ with the Criminal Process

Prosecutor Robert McCulloch

Prosecutor Robert McCulloch, photo by N.Y. Times

WC reminds everyone that ‘Find the Lady‘ is a con. At its simplest level, the mark is asked to choose the queen of spades from  deck of cards, when the queen of spades isn’t in the deck. Or to find the pea under one of three coconut shells, when in fact it isn’t under any of them.

At another level, it’s a useful metaphor. It’s an accurate way to describe an attempt to conceal, by slight of hand or misdirection, something you don’t want the mark – that would be us – to notice.

WC accuses St. Louis Prosecutor Robert McCulloch of running a ‘Find the Lady’ con with the public regarding the grand jury asked to indict Ferguson police officer Darren Wilson.1

“Look,” said McCulloch, “Here’s all the evidence we presented to the grand jury. We showed them all this. They made an informed decision.” But the real issue isn’t what he presented to the grand jury; it’s what he didn’t present. McCulloch failed to do his job, in a blatantly political way, and wants you, the media and – most importantly – the folks who vote for the District Attorney in St. Louis, to focus on all the evidence he made public. Not his failure to do his job.

McCulloch ran more of a jury trial, not a grand jury investigation. It’s not the place of a grand jury to decide if the accused is guilty. It’s the grand jury’s job to decide if there is probable cause to believe a crime has been committed. To do that, they need to hear the evidence and be instructed on the elements of the possible charges. They should hear exculpatory evidence as well, but that doesn’t go to guilt or innocence; it goes to whether or not there is probable cause to conclude a crime has been presented. McCulloch turned it into a snipe hunt.

The grand jury’s job is not, as McCulloch claimed, “To separate fact from fiction,” except as it bears on the determination of probable cause. It’s the District Attorney’s job to explain the possible charges, the elements of each, the evidence supporting each of those elements, and then let the jury decide if it amounts to the legal requirement of probable cause. What McCulloch did was dump buckets of evidence and pages of criminal statutes on the grand jury, and then tell them to sort it out.

Probable cause is a very low standard of proof. In most jurisdictions, it means there is a reasonable basis for believing the facts warrant an indictment. It doesn’t mean the defendant is guilty; guilt or innocence is for the petit jury, the trial jury. In a grand jury proceeding, if the facts allow two reasonable interpretations, one of guilt and one of innocence, any prosecutor worthy of the name will get the grand jury to return a true bill. Because it isn’t about guilt or innocence. It’s about a reasonable basis for concluding a crime has been committed. Officer Darren Wilson emptied his pistol into an unarmed teenaged, with at least one shot in the back, as the kid was running away. It doesn’t take a high degree of competence to get an indictment on those facts.

McCulloch didn’t do his job. And he’s trying to conceal his failure with this game of ‘Find the Lady,’ pointing to all the evidence the grand jury saw as if that is relevant to the grand jury’s job.

WC doesn’t know why McCulloch bailed on his job. Incompetence? Political cowardice? Or the perennial problem of prosecutors, too close to the cops?

The result has been a gross injustice. The result has been a further loss of faith by the public in the criminal justice system. A perversion of justice, a show trial when there shouldn’t have been a trial at all.

The Feds have partial concurrent jurisdiction. Getting murdered by trigger-happy cops is a violation of the victim’s civil rights. We’ll have to hope that the Feds can mount a competent investigation, do a competent job before a grand jury and get a conviction at trial. It’s a puny, watered-down substitute for justice, but it’s better than a DA playing ‘Find the Lady” with the truth.

  1. This wasn’t Mr. McCulloch’s only dishonest behavior. He also attempted to blame the media for the “challenges” the investigation faced. It’s an argument of scoundrels. A Nixonian chunk of dishonesty. 

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