Willoughby: Grand jury deciding Ferguson case was right move

St. Louis County Prosecuting Attorney Robert McCulloch has been criticized over his handling of the Michael Brown case – in which a grand jury decided not to indict the Ferguson, Mo., police officer who shot and killed the 18-year-old – but a former Wake County prosecutor says he did the right thing in letting jurors decide whether charges were warranted.

“It’s a very difficult situation,” said Colon Willoughby. “It’s an emotionally charged event in the community.”

Willoughby sent many cases to grand juries during his 27 years as Wake County District Attorney. Many came back with indictments, but Willoughby said those involving officer-involved shootings did not, including a 1991 incident where Raleigh police officer Vince Kerr shot and killed an unarmed man during a drug raid.

In most grand jury cases, witnesses testify and prosecutors recommend charges. In Ferguson, McCulloch used an investigative grand jury, where he personally questioned dozens of witnesses and allowed jurors to ask questions, but didn’t recommend charges.

Such grand juries are rare in North Carolina, and they are only used during drug cases with special permission.

In officer-involved shootings, Willoughby said he used a presentment, where a prosecutor isn’t involved in presenting evidence, questioning witnesses or making recommendations on charges.

Such is left up to jurors.

“They really have a better perspective on what the true facts were in this case, what the believable evidence is than rumor, innuendo, and various talking heads giving their opinion,” he said.

Willoughby, who left the district attorney’s office in March to become an attorney with McGuire Woods in Raleigh, said taking a case to a grand jury gives a district attorney political cover while allowing jurors to question evidence and witnesses.

“The prosecutor is very influential in what happens in the grand jury process, but in this process, the prosecutor is not putting his thumb on the scale to try and direct this in either direction,” he said.

Attorneys for the Brown family said during a Tuesday news conference that McCulloch did the opposite, claiming he had influence from how the evidence was presented to relying on witnesses who did not see the shooting. Critics also said McCulloch, who has deep relationships with law enforcement, was also influenced by the death of his father, a police officer who was killed while responding to a call involving a black suspect.

Even with growing criticism over McCulloch’s actions, Willoughby believes an investigative grand jury was appropriate for the Brown case.

“I do believe the process and procedure used was the correct one,” he said.