Legal Experts Explain Why The Ferguson Grand Jury Was Set Up For Failure

[loyalsister]

Specifically, McGraugh and Christmas question McCulloch’s unusual decision to present “all evidence” to the grand jury. Typically, prosecutors present to the grand jury only the evidence necessary to establish probable cause. (A grand jury does not determine guilt or innocence but only if a reasonable jury could find the defendant guilty.) McGraugh and Christmas are especially critical of McCulloch’s decision to allow Wilson to testify for hours in front of the grand jury.

http://thinkprogress.org/justice/2014/11/24/3596621/in-powerful-video-legal-experts-explain-why-the-grand-jury-in-ferguson-was-set-up-for-failure/

It almost sounds like he tried to confuse them.

I remember a defense atty telling me that he knew something was wrong when Wilson was going to talk to the grand jury. He said that as a defense attorney he tries to avoid putting his clients in that position unless they can truly help themselves because the prosecutor is the adversary. In this case, he said he thought that the fact that the defense wanted to testify suggested that they didn't feel they had much to fear.

[TygrBright]

1. Exactly. Having served on a grand jury, I realize how careful prosecutors are.

At least, when they are trying to do their jobs well.

The jury I sat on reviewed seven cases altogether, and in only ONE of those cases did the prosecutors even allow a victim to testify.

Mostly, they presented expert witnesses, and technical materials such as maps, drawings, photos, etcetera.

I'm not even sure that in most cases, the accused were aware of exactly when their cases were being heard.

disgustedly,
Bright

[staggerleem]

14. I have also served on a grand jury.

We were in session for a month, and heard about 50 cases. Most of the testimony we heard was from the arresting officers. I think we heard from ONE victim, and ZERO defendants! I'm told that's reasonably par for the course.

If I recall correctly, there were only 2 cases where we chose NOT to indict.

Draw your own conclusions.

[branford]

23. Defendants normally have the right to testify at the grand jury, if they so choose.

They rarely choose to do so because their statements can then be used at trial.

[Cha]

2. Thank you for this, loyalsister!

[JDPriestly]

3. Here is a pretty good explanation of the grand jury process.

http://criminal.findlaw.com/criminal-procedure/how-does-a-grand-jury-work.html

A good federal prosecutor used to say that a prosecutor should be able to get an indictment if he/she wants it.

But . . . . even police officers are innocent until proven guilty.

That is an unpopular thing to say at this time when it appears that a great injustice goes unpunished. But that is our law. The defendant gets the benefit of the doubt.

Depending on how strong the evidence is, it may be that there will be a civil trial that will at least insure a public airing of that evidence.

The accused testified at length. That seems odd, but I don't know just what was done or why.

[Kablooie]

4. I'm sure the why was to insure there wouldn't be a trial.

the prosecutor is on the defenses side in this situation.

[JDPriestly]

5. I don't know for sure, but I'm not going to disagree with you.

I'd like to see a civil trial, but I don't know whether that will be possible.

The standard of proof is lower in a civil trial.

[KingCharlemagne]

18. That's the point. This was a secret 'Star Chamber' proceeding and none of us

Last edited Wed Nov 26, 2014, 08:54 AM - Edit history (1)

know what was done or why.

BTW: While Wilson enjoys the presumption of innocence until such time as a judge or trial jury finds him guilty beyond a reasonable doubt, the presumption of innocence plays no role whatsoever in a GJ's deliberations which are strictly concerned with determining whether probable cause exists such that a crime was committed and an indictment should issue.

The question thus is not whether Wilson is guilty or innocent. He enjoys the presumption of innocence. The question is only this: is there probable cause that Darren Wilson committed a crime?

[branford]

24. That's not entirely true.

First, all grand juries are confidential. They are a common practice with a long history, recognized in our Constitution, and hardly constitute "Star Chambers." Apparently, the transcripts of the relevant proceeding have also been released for
public's review. All jury deliberation, grand and trial, are also never public affairs.

More importantly, although a grand jury is suppose to only determine if there is probable cause, they can do whatever they wish without legal repercussion.

Similar to jury nullification at trial, which many on DU strongly support, it certainly is controversial, but no billing even if the grand jurors believe probable cause exists, may still happen.

In any event, I have no idea what was going through the minds of any of the grand jurors. I believe that we still don't (and might never) even know the grand jury's final vote (it only required 9 of the 12 to indict).

Also note that a prosecutor is under no legal obligation to limit their grand jury presentation to only inculpatory witnesses or even recommend an indictment.

[JDPriestly]

35. Correct. No presumption at the grand jury stage. But for people on DU there should be no

presumption until there is a trial.

[The CCC]

32. Here is a pretty good explanation of the grand jury process.

Incorrect. There is no presumption of guilt or innocence in a Grand Jury Hearing. It is there to establish probable cause for a trial to find guilt or innocence with the presumption of innocence to the possible defendant.

[JDPriestly]

36. I did not meant to suggest that there should be a presumption of innocence at the grand jury

hearing. That would be impossible because the purpose of the hearing is to determine, as you point out, whether there is sufficient evidence to hold a trial. Sorry that my statement was confusing.

I was speaking to DUers. To get a fair jury trial, it is important that the public presume innocence or at least try to.

It's very difficult, but we should give every defendant a fair hearing. That fair hearing is denied all too often.

I'm not saying Wilson is innocent. I'm just saying that it takes a trial to determine whether he has been found guilty or not.

I hope you understand what I am saying. I am not taking Wilson's side. I am just reminding people that guilt or innocence is determined at a trial.

I do not think that prosecutors who work so closely with police officers and rely on the police officer's testimony in most cases -- who are colleagues of the police officers in a sense -- should bring cases regarding the indictment of a police officer to a grand jury. There should be a special panel of lawyers from which someone is picked to present the evidence to the grand jury in a case concerning a police officer.

This grand jury hearing was a travesty. It is possible that the prosecutor presumed not the guilt but the innocence of the accused, Wilson.

[freshwest]

6. Thanks for this, I thought his speaking would be a good thing. He was probably coached very well.

I've only seen one piece of a fragment of a note taken by a juror that seemed as if the officer or juror was confused.

It ended with with 'OMG, the blood' but had referred to Brown as 'the kid.' I don't know how that juror voted.

Gawker is trying to get the files. It is hard to get them as the server of the radio station that is releasing them is overwhelmed. There will be little or no peace in most people's hearts until this is resolved.

And now I don't know if it ever will be. This is a big wound, the way this was handled there, like Zimmerman.

[loyalsister]

8. There is a lot of work to be done

That region has GOT to change.

Ferguson's election turnout is terrible by design. Here's how to fix it.

If you compared the racial makeup of Ferguson, Missouri’s population as a whole to that of its government, it would be easy to mistake the city for an enclave of Jim Crow. Although nearly 70 percent of Ferguson is black, 50 of its 53 police officers are white. So are five of Ferguson’s six city council members. The mayor, James Knowles, is a white Republican.
Ferguson can help ensure that its leaders more closely resemble its population, however. They just need to hold their elections at a time when voters are actually likely to show up.

http://m.dailykos.com/story/2014/08/18/1322606/-Ferguson-s-election-turnout-is-terrible-by-design-Here-s-how-to-fix-it

I think another way to do it is for people to commit to voting and follow through. Beyond that, maybe someone will be willing to run for city council. Rather than change the calendar, I think the goal should be to get people in the black community to vote and run for office. This is a time when the citizens can bring awareness because people are listening and are ready to act. I think the NAACP will probably get busy working on that.

[freshwest]

13. I agree, but will voices to disengage win out? Even the Browns said to work to change the system.

Not destroy it and work around it.

The people of Ferguson are being hindered in their voting, as their local elections, it was explained to me by a MO poster, are not in November when the interest is highest, but the following February. When weather might even be harsher than it is right now there.

It was a response to a video I posted of how the young people went to wait in line at the city council meeting, were for the most part ignored and then a young man spoke up about their indifference. He said they were history and would be voted out for not doing their job. It got more negative replies than positive ones even here at DU.

Some want all of the people to give up. There has been a lot of mocking of the DOJ getting witness statements and the feds passing out voter registrations this past summer. Not voting just allows these injustices to continue.

Thanks for the thoughtful response.

[loyalsister]

16. The people I have been interacting with

here and via twitter have shown a great deal of respect for the Browne's. We sat quietly for 4.5 minutes and then worked out our plans for a peaceful march. They are listening so that they can make sure we honor their wishes.

I have gotten some messages from Ferguson in that spirit, as well. Things are really happening in some ways that might help enough people from Ferguson to overcome that sadness and want to work to make changes in the system. IMO It would be a beautiful thing if they took over their city government in elections. It's easy to spout off pipe dreams from a distance, but we've got to grab something.

Our municipal elections are in April and the candidate's election are staggered. We also have low voter turnouts for them. Maybe we can get together on this? I am trying to maintain hope!

[freshwest]

17. I respect and appreciate your actions and the ground work there. I feel better reading it. Thanks.

[loyalsister]

37. Thanks!

It is so important for all of us to do what we can now. I'm lucky to be in a place where there are a lot of opportunities to be of help.

[gvstn]

11. The OMG quotation was from the diary of Witness #40, not a juror.

August 9th - Saturday

8AM

Well Im gonna take my random drive to Alousant. Need to understand the Black was better so I stop calling Blacks Niggers and start calling them People. Like dad always said you cant fear an hate an entire race cause of what one man did 40 yrs ago.

4PM

OMFG it was crazy I dont even know where I was I ask Q.T. guy for directions but went wrong way. I just wanted to take drive. I ended up in Some Apartment Complex & asked directions again. Real nice kid in wife beater he had no idea he asked guy in green Shirt & Jeans that guy was realy sweet. Then I heard a weird noise caught my attention this cop was backing up saying [?]

I couldnt hear but they was some kids I almost hit with car. A big one & a skinny one. The Cop tried getting out & the big one hit the door the cop looked pissed & tryed opening door again. The big kid hit the door with his gut & the little one punched the mirror someth gold fell on the ground. The big one is half in the window/door cant Remember. I swear the little one had the cops leg. I heard a noise not sure what the guy in the green shirt was yelling stop the big kid pulled his pants up they was tan shorts & he started running the skinny one took off on opp direct the cop got out left hand on face right hand on gun. The cop scream but I could not understand . Every one was screaming. I heard 'lay yo stupid ass down' I think it was a lady next to me. The cop was wobbling the big kid turned around had his arms out with attitude. The cop just stood there dang if that kid didnt start running right at the cop like a football player head down. I heard 3 bangs but the big kid wouldn't stop. I heard cop say something but not sure what or if he was just making noise. Cop took a couple steps forward then backwards and the gun went off 2 more times. The last one the top of the kids head. OMG the blood. The green shirt man grabbed my arm and said get your ass out of here. I got in car & drove into into neighborhood some how[?] I went through parking lot across the street & back to Main Rd. Not sure how long but police were every place with Police tape. There was other cops there I seen one pull his gun but he didnt fire. Dont even remember when he got there. There was lady in parking lot of QT I just pulled up and asked for the close highway. She points & I left. Then to top shit off I got on highway going the wrong way. Had to ask for direct again. Real nice old man helped me out. Home has no cable so not sure whats on news.

9PM

Talked to [REDACTED] without telling him everything. He told me 1st I was nuts to taking drive up there and 2nd keep my mouth shut. He's prols right noone will believe me anyway.

http://www.documentcloud.org/documents/1370734-witness-40-journal-entry.html

[freshwest]

12. Thanks for clarifying. I could only find the fragment and it didn't say who it was, Just GJ.

Thanks for the link. Puttihng it for my Journal as part of the Ferguson Grand Jury Release:

http://www.documentcloud.org/documents/1370734-witness-40-journal-entry.html

[ReRe]

7. What was so weird about this whole thing....

... is that the Prosecuting Attorney usually represents the victim of violence, NOT the accused, or perpetrator of the violence. In this instance, the victim was dead, and the Prosecuting Attorney represented the perpetrator of the violence.

And here's what was actually assumed in this case: Michael Brown, Jr, the innocent victim of violence, became the perpetrator, and that Darren Wilson became the victim.

[branford]

25. The prosecutor never represents the victim.

The prosecutor represents the State, and they are not required to even pursue charges, no less a trial, in any criminal matter if they do not believe they are warranted. They are also not required to request an indictment if the present a matter to a grand jury.

The victim, or their representative, estate, etc., are represented by their own counsel, and in civil proceedings.

That said, whether charges should be pursued and the decisions and conduct of the local prosecutor are certain worthy of discussion and criticism.

[ReRe]

33. The State, on behalf...

... of the Prosecuting Attorney, does represent the victim UNTIL there is an indictment, and if there is an indictment, THEN, if the accused does not plead guilty to the charges, then the victim gets their own lawyer? The victim is not represented by the state throughout, if the case goes to trial?

I am speaking from a personal experience.

[branford]

39. That's not correct.

I've been a trial attorney for over 17 years, and I can assure you that any lawyer knows that the prosecuting attorney in any potential and actual criminal matter always represents the state, never the victim. This nuance is more than just a technicality, and can be quite substantial in terms of duties, obligations and ethical concerns. Even at the charging or grand jury stage, the prosecutor still represents the state. At all times the alleged victim is a witness, possibly indispensable to the prosecution, but still only a witness.

Of course, prosecutors generally work quite closely with the victim / complaining witness, obviously can be quite sympathetic and accommodating to their needs and concerns, and may vigorously prosecute the particular matter to see that justice done, both for the victim and state. However, the prosecutor's duty to the state always transcends and is separate from the victim. For instance, a prosecutor does not need the victim's consent for plea arrangement, but may nevertheless still seek approval due to simple comity.

The only time a victim is represented by a lawyer is if they retain one themselves. Sometimes victims retain their own counsel at various stages of a criminal trial, including before filing a complaint with police or prosecutors, in order to protect their legal interests, help them through the process, or any other ancillary matters, including preparing for a later civil complaint. A victim / plaintiff also requires their own lawyer (if not pro se) in order to engage in civil litigation.

[ReRe]

40. I see...

... Thank you for explaining. In my case, the accused (the rapist) at first claimed not guilty (consensual). He was questioned by the GJ and was indicted. After the defense (and probably the State) tried to find history on me and could not find anything, and I was committed to going through a trial, the rapist admitted to the 3 counts against him and I agreed with the PA for a sentence of 9 years. And it never went to trial. I never once hired a lawyer. The reason it happened that way is because I reported it immediately, went straight to the hospital and spent close to 24 hours with the detective until the rest of the evidence was collected. Anyway, he did serve his full time and the PA contacted me when he was getting out when the time came. He was one violent dude and I still worry that he will find me and finish the job, even though I've done everything I can to make my whereabouts unknown. Truth be known, he's probably back in prison by now, as he had quite a record before he ever met up with me.

[branford]

41. I'm sorry you were the victim of such a crime,

and hope you are now doing well. I'm glad your were diligent about the evidence in your case, the prosecutor took it seriously, and your determination to seek justice was successful.

In furtherance of my earlier comments, although the prosecutor's duty is first and foremost to the state, that in no way means they are in any way indifferent to victims or do not zealously seek justice for crimes. Although some prosecutors may be lazy, incompetent or biased, the vast majority are good people who sincerely want to protect victims and see justice served.

Although I cannot provide legal advice over a message board, if you actually fear for your safety, you might want to consider contacting the prosecutor or police to see if your assailant is in fact again in the justice system. The prosecutor should have ready access to check if the criminal is incarcerated or otherwise in trouble throughout your entire state or sometimes beyond. He or she may also recommend other options to protect your safety such as a protective order or programs for access to emergency police and medical alert devices free of charge.

Good luck.

[ReRe]

42. I say I worrry...

.. but it just lays back there in the back of my mind. I don't live my life in fear. But you are right, I could call the PA and he could answer my question about the fellow's whereabouts. I think I will do just that next week.

[Nye Bevan]

9. If the prosecutor had only called the witnesses who claimed that Wilson stood over Brown

and executed him, and did not introduce the forensic evidence which discredited such testimony, he could probably have secured an indictment. But would this have been the right thing to do?

[loyalsister]

10. The basic question

should have been - did Wilson have reason to believe that Brown had or was going to commit a crime because he was jaywalking? (Remember that there was no confirmation on whether he was a suspect in the shoplifting incident).
There are only arguments in those questions. They should have been fully explored in a trial. Especially along with the fact that he was shot so many times.

I'm not convinced that the witness testimony was entirely necessary to the GJ proceedings.

[Rex]

22. Well he said Wilson never stood over the body, but a picture from a camera phone says

otherwise. Really, if the prosecutor would have done his job there would have been an indictment. He didn't prosecute Wilson, he defended him. He even said so in his bizarre press conference.

The entire thing is a sham of justice.

[azmom]

15. And now he is trying

To do the same with the public by doing an information dump.

[underpants]

19. +

Lots to read here.

[blkmusclmachine]

20. Very, very strange, indeed.

[Rex]

21. Why did it take months? I read the average time is just one day for a GJ.

Is that true?

[branford]

26. This was not a average case, regardless of how one feels about Wilson.

It is also not unusual for a grand juries to sit for months in complicated matters.

Note that grand juries usually only sit for limited periods of time (e.g., only a few days a week for only a few hours each time, etc.)

[loyalsister]

28. I am not sure about the average time

But he seems to have given them all of the evidence that he would have presented during a criminal trial, rather than just the evidence that he thought justified prosecution. I saw that someone said that the bulk of the evidence should have been saved for a full trial.

With that, I kind of thought that much information might have been overwhelming.

I don't necessarily believe there was any conspiracy. Maybe it was incompetence, or just sloppy work.

[Leopolds Ghost]

27. We now have evidence of why McCulloch is compromised to the core.

As people from Ferguson were saying from the very beginning.

He's also been leading a campaign targeting black elected officials in St. Louis county, by the way.

[blackspade]

29. The whole thing was rigged in Wilson's favor

[Lars39]

30. I'd go back even farther than the grand jury...who is on the commission that chooses them?

And who chooses those on the commission? If the commission is stacked with racists with an agenda(oxymoron there, huh), then there's a good chance they are very carefully putting people on the grand jury who will be compliant to the commission's goals, ie indict as many black people as possible. Judges need to be looked at also.
Racism is systemic, and it sounds like their entire justice system could be tainted.

[branford]

31. Grand jurors are randomly chosen from a number of sources,

just like regular trial jurors and have the same eligibility requirements. In fact, it is often much easier to serve (i.e., fewer people are dismissed), due to the more general nature of the grand jury responsibilities.

It is also my understanding that the Wilson grand jury was selected and seated before the shooting.

I have seen absolutely no evidence that the grand jury was anything but impartial and conscientious. Complaints about the prosecutor and his presentation to the grand jury, or the fact the jurors didn't vote they way some demanded, in no way implies the jurors themselves did anything improper.

[shaayecanaan]

45. Is it even true that prosecutors can withhold evidence from a grand jury?

I am from Australia, where the equivalent process is called a committal (essentially where the police have to demonstrate that there is a prima facie case, as opposed to probable cause) - the chief difference being that a magistrate makes the call as opposed to a jury.

The police have to produce a brief of evidence to the Defence before the committal, and are generally not able to produce evidence at the trial that was not made available to the defence in the brief.

It is the defence that has the election of which crown witnesses have to give evidence, and to what extent (ie full testimony, cross examination on a written statement, or not at all).

I find it bizarre that on a supposedly liberal website there are so many posters saying that a prosecutor should be able to ram through an indictment whatever the circumstances. It seems that the rights of the criminally accused go out the window at times like this.

BTW, if you can't get through a committal, there was no way on this green earth that Wilson was going to be convicted at trial.

[branford]

46. My comments on this thread and others only pertain to what the grand jury and related

procedures are, not their wisdom or preference. Also, although I am an attorney in New York and New Jersey, I have no knowledge of any Australian procedures to make any truly informed comparisons.

First, the grand jury process exists both on the federal level and state levels. The Constitution requires that all federal felonies require a grand jury indictment, but each individual state also has their own grand jury rules and procedure for state crimes, and some rarely, if ever, use a grand jury to issue an indictment.

The State of Missouri's rules apply to the Wilson matter. Also note that state crimes are generally prosecuted at the county level in each state, and each county in Missouri has their own District Attorney, or chief prosecutor. It is usually very difficult to remove a District Attorney from a case in their jurisdiction.

It is my understanding that a prosecutor in Missouri may use a grand jury at his or her discretion, but it is not required in order to seek an indictment. First and foremost, a prosecutor need not actually seek and indictment or criminal charges in any potentially criminal matter. This is known in the USA as prosecutorial discretion. A grand jury is also not a trial. It is supposed to be a determination of whether "probable cause" exists that a crime was committed and should be held over for an actual trial. There is generally no judge or defense counsel in the grand jury, and the prosecutor controls the entire process.

A prosecutor need not actually recommendation that a grand jury issue an indictment, and has complete control over which witnesses and evidence he chooses to review. A suspect need not testify at the grand jury due to protections against self-incrimination (the 5th Amendment). However, he may choose to do so. This is rare because such testimony may then be admissible at trial.

When a prosecutor truly wishes to indict a suspect, it usually is not too difficult. He would only call a limited selection of inculpatory witnesses. However, when the prosecutor is unsure if an indictment should issue, or does not actually want an indictment, but feels taking no action has political consequences, he can present all evidence, including a broad range of exculpatory evidence to the grand jury, and lead them to a decision not to indict. This is probably what occurred in the Darren Wilson grand jury. Due to prosecutorial discretion, absent criminal conduct by the prosecutor such as bribery, blackmail or suborning perjury, he can handle the grand jury as he so chooses. Effectively, the grand jury is usually little more than a rubber stamp for a prosecutor, regardless of whether he wants an indictment or not.

[1StrongBlackMan]

34. Go to the 4:50 mark ...

Former Prosecutor Christmas states explicitly what happened in this case ... from his experience as a prosecutor.

And then, again at the 6:50 mark, from the perspective of a Defense Attorney.

[spanone]

38. mcculloch acted as darren wilson's defense attorney...there was no prosecutor in this case

[Overseas]

44. K&R. I agree.

[Overseas]

43. K&R. Great to hear attorneys review the procedures.

[sammy750]

47. It was reported on TV today that tens of thousands of cases go to the Grand Jury. Only

11 cases where not convictions and they were all cops. The cops went free. Wilson was added to that 11.