Fact versus (two kinds of) fiction
McCulloch drew his contrast between fact and fiction about one-third of the way into a press conference that one critic called a “bizarre self-justifying ramble.”6 Not just a simple announcement, the address was more like a string of narratives. McCulloch began with a critical reference to the proliferation of competing witness accounts of Brown’s death, then launched into a detailed description of the process McCulloch’s office had used to present the case to the grand jury’. After discussing this process for roughly ten minutes, McCulloch announced the grand jury’s fact-finding duty', then finally revealed the grand jury’s decision not to charge Wilson.7 By prefacing this key' announcement as he did, McCulloch set up the about-to-be-announced grand jury' decision as a matter of fact, rather than fiction. His sequencing suggested that the jurors had successfully managed to identify the objective reality amid the conflicting accounts of Brown’s death that McCulloch had spent the first several minutes of his address criticizing, and therefore that the grand jury's decision was unassail-ably legitimate.
Journalists and legal commentators were uniformly critical of the announcement’s content and presentation. Criticism focused in particular on the unusual methods McCulloch described his office as using in presenting the case to the grand jury. The process followed was unusual in several ways. First, McCulloch and the assistant prosecutors who presented the case “inundated the grand jury' with ‘every’ scrap of evidence [they] could find,”’8 instead of following the normal procedure of offering the evidence that would support a finding of probable cause.9 Second, although grand jury' proceedings are not adversarial (the potential indictee is not represented by defense counsel), the prosecutors in the Wilson case presented some of the evidence as it would have been presented in an adversarial proceeding (e.g. by' pointing out contradictions between the physical evidence and some eyewitnesses’ accounts).10 Third, again in a departure from normal practice, the prosecutors did not recommend a charge to the grand jury', but offered the jurors a menu of potential charges from which to select.11
Commentators saw these approaches as both predetermining the grand jury’s conclusion and allowing McCulloch to dodge responsibility' for it. On this widely shared view, McCulloch constructed a self-serving story' about the activities of his office in connection with the case. The story’ selectively omitted important information and misleadingly framed other details in order to deemphasize McCulloch’s control over the course of events and the outcome. McCulloch’s speech does indeed contain multiple stories, including not only' those mentioned above, but also a story' describing how the grand jury' deliberated, and, at the very' end of the address, an account of what happened on August 9 during the encounter between Brown and Wilson. As he recounted these stories in his address, McCulloch did consistently deny his role in their creation. In his account, neither McCulloch nor his assistants told any particular story to the grand jury; the grand jury just received “all the evidence.”12 McCulloch was aligned with his critics, however, in his general suspicion of storytelling. In particular, his speech describes (non-narrative) physical and forensic evidence as more dependable than the narrative accounts of eyewitnesses:
The physical evidence does not change because of public pressure or personal agenda. Physical evidence does not look away as events unfold nor does it blackout [sic] or add to memory. It remains constant and is a solid foundation upon which cases are built.13
Even though McCulloch’s address was a resounding failure as a rhetorical performance, his critics mostly seemed to agree with this apparent vision of law as, ideally, a story-free enterprise, or at least an enterprise in which storytelling is subject to severe constraints. This position underlies more specific criticisms of McCulloch that might otherwise seem inconsistent. One theme in the criticism of McCulloch, as suggested above, was that he constructed the stories he told in the address for the purpose of avoiding personal responsibility.14 On this view, McCulloch’s mistake was not that he told a story', but that he did not include himself in the story' as an active agent; he did not reveal the bias inherent in the story'. Another prominent critical theme, however, was that there was no way' for McCulloch to have handled the case properly, because his personal history' prevented him from approaching it impartially.15 On this view, the address was flawed not just because of the way' McCulloch presented the information, but more basically because of the nature of the underlying information: McCulloch could not have told a defensible story' about the grand jury' process because his background made him incapable of pursuing truth in this case. Like McCulloch’s own denigration of witness testimony, this perspective identifies the legal process with truth-seeking and suspects the contaminating influence of any arguably' subjective agent in that process. McCulloch and his critics thus seem to share a notion of stories—at least in this case—as inevitably subjective, distorted, and inappropriate to legal decision-making, a notion McCulloch himself summed up as a contrast between fact-tracking law and illegitimate fiction.16
All of McCulloch’s critics, however, either implicitly or explicitly compared the approach he took to the case with another approach that he did not take. The view of McCulloch’s address as brazenly' denying his own role in predetermining the grand jury’s decision presupposes that if McCulloch’s office had presented the case to the grand jury' differently, the grand jurors might have reached a different conclusion. The view of McCulloch as personally biased presupposes that if he had stepped aside from the prosecution, and someone lacking his background had prosecuted the case, the process might have led to a more factually accurate, legitimate, and acceptable result. Both perspectives imply the possibility of an alternative to what is understood to have actually taken place. Critics holding these views made their points by inviting their audiences to imagine how such alternative courses of events would have unfolded.17 Although McCulloch’s critics disparage fiction in one sense, then, in this other sense they make use of something like fiction, something involving the imagination and description of non-actual states of affairs.
McCulloch’s critics did not draw attention to their use of this kind of reasoning, nor did they address whether it is consistent with a vision of law as a fact-oriented enterprise. But journalists’ professional role does not ordinarily oblige them to examine and defend their own logic in this way. It is not clear that the same can be said of lawyers like McCulloch. As will be discussed further below, in legal settings, consideration of hypothetical alternatives and their implications is neither new nor unusual. Such consideration is, in fact, sometimes explicitly required by legal rules.18 McCulloch’s public statements about the Wilson case went beyond a (perhaps excusable) lack of self-awareness about the prevalence of such considerations in legal practice. During and after the address, McCulloch deviated from standard legal practice more basically by appearing positively allergic to admitting the possibility of alternatives to the course he followed. He closed his announcement, for example, with what sounded like a call for civic reflection and social change: “I urge everyone who was engaged in the conversation, who was engaged in the demonstrations, to keep that going. ... And to do it in ... [a] way that we can benefit from this, by changing the structure ... by solving the issues that lead to these sorts of things.”19 When a reporter present at the address asked what changes to “the structure” McCulloch would propose, however, McCulloch responded, “There’s just no way to answer a question like that.”20 The following month, discussing the timing of his announcement with another reporter, McCulloch insisted “that he did not believe events [such as the arson that evening in Ferguson] would have been different had he chosen to wait until daylight to reveal the grand jury’s conclusion.”21
McCulloch’s persistent refusals to consider alternatives to the course he followed are consistent with the commitment to fact he expressed in his speech. It would have been a challenge for him to present the narratives he offered as factual and yet as just a few of several possible sets of stories that could have been told about the events of August 9, the presentation of evidence to the grand jury, and the grand jury’s deliberations. McCulloch’s aversion to alternative accounts might even be an understandable, if not excusable, side-effect of his professional identity as a prosecutor.22 But the critical reaction to his speech and conduct suggest a widespread sense that his refusal to consider alternative possibilities was deeply inconsistent with his professional obligations. In other words, the problem with McCulloch’s speech was not that, or not only that, it included several stories, or that those stories were constructed from a particular perspective. The address could have included factual narratives.23 The more basic problem with the address was that it failed to tell an acceptable story because of McCulloch’s persistent failure to consider how things might have been different—revealed through his persistent refusal to acknowledge any such considerations. To tell an acceptable story, McCulloch would have had to describe himself as open to possibility, including the possibility that Wilson might have acted wrongfully.
Viewed this way, McCulloch’s address and the responses to it reveal a more complex set of links among fact, fiction, and law than the traditional dichotomy suggests. McCulloch and his critics agree that legitimate legal decisions are based on fact and are objective, rather than subjective (a synonym, in this context, for biased or self-serving). They also seem to agree that perceiving a legal decision as legitimate often involves perceiving it in the context of several stories, or narratives. Although they do not necessarily conflict, these two points are still in some tension. Most narratives imply the endorsement of some perspective and are vulnerable to criticism on that basis.24 Such subjective accounts of events, unchecked by testing against others’ accounts and other information, are the kinds of “fiction” that both McCulloch and his critics reject as legally inappropriate. But not all narratives are fictional, and—less familiarly— not all departures from fact are so tightly perspective-bound. Indeed, one of the ways of determining whether a particular narrative is sufficiently anchored in fact is to explore alternative possible sequences of events or run mental simulations— to generate fictions.25 These sorts of fictions are endemic in legal discourse and decision and are considered acceptable and legitimate, even though they are very' rarely explicitly discussed.26 The next sections of this chapter will further explore some of the way's in which the entertainment of possibilities involves a kind of fictionalizing and suggests some possible explanations for the general repression of legal awareness of this phenomenon.
