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Monday, November 24, 2014

Ferguson, again

Following the grand jury declining to indict Officer Wilson in the shooting death of Michael Brown, the Brown family released a statement specifically calling for a "campaign to ensure that every police officer working the streets in this country wears a body camera." Yes, give everyone a camera--but do not expect it to have as conclusive an effect as you think it will. Video likely would not have changed the grand jury's decision. Perhaps it would have made him less likely to shoot, but I think the deterrent argument is open to debate right now.

A couple things for crim law experts:

1) Is it the grand jury's role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury's job as to "separate fact from fiction." Is that wrong?

Now, I know prosecutors often will not seek an indictment if they believe they have enough for probable cause but not to convict, in light of possible witness-credibility problems. But does witness credibility often suggest the absence of probable cause?

2) It seems to me the question is what evidence the grand jury heard showing that Brown posed a continued threat to Wilson. The rule seems to be that a police officer is entitled to keep shooting until the threat is over. It appears that Wilson fired ten shots at a distance (following two fired at close range). The question must be whether any of those initial shots incapacitated Brown.

3) How common is it for the target to testify before a grand jury? How common is it for defense counsel to allow a client to do so?

Posted by Howard Wasserman on November 24, 2014 at 11:53 PM in Howard Wasserman, Law and Politics | Permalink


Can someone explain the Missouri AG's statement that the prosecutor in Ferguson gave the wrong jury instruction on the standard for lawful use of deadly force by police? (http://www.dailykos.com/story/2014/12/04/1349421/-Missouri-AG-Confirms-Michael-Brown-Grand-Jury-Misled-by-St-Louis-DA) Is it true that the state statute the prosecutor relied on differs materially from applicable Supreme Court caselaw? What are the key differences?

Posted by: Larry Levine | Dec 7, 2014 10:57:55 AM

I happened to about an old episode of "Naked City" -- the old police show -- and the episode ended with a prosecutor warily (he admitted to be unsure if what he was doing was right) bringing to a grand jury a tragic case of jury tampering by a teenager who was more victim than perpetrator.

It's fiction, obviously, but perhaps Steven Morrison's comment suggests it somewhat reflected -- then and/or now -- reality. I did not catch the end -- it was late, I fell asleep -- so can't tell you the ending!

Posted by: Joe | Nov 27, 2014 11:22:46 AM


While invoking one's bona fides is usually a poor argument, you introduce it: you disagree with my statement while saying you have no firsthand knowledge. As a criminal defense attorney of seven years (2007-present), a crim pro/crim law professor, and an active member of NACDL, I suppose I'm a little qualified, based on my firsthand experience, to opine. And prosecutors will indeed roll the dice. Many of them care a lot less about their win/loss record than you think, and many of them believe that their ethical duty isn't to judge guilt or innocence, which they view as the jury's role. Rather, they believe that their role is to bring charges that a jury might or might not reasonably sustain with a guilty verdict.

Posted by: Steven R. Morrison | Nov 26, 2014 2:58:46 PM

TJM wrote:
"The fact is, this is a highly publicized case and we don't know exactly how it differs from the typical grand jury investigation. There are probably a lot of criminals who are not indicted, but we don't know because the process takes place in private."

Some of us actually have experience with the things we opine on.

Posted by: brad | Nov 26, 2014 2:04:32 PM

"The jury (grand or petit) is supposed to discern the truth as much as possible."

The grand jury is present for the limited purpose of determining if there is probable cause to bring the case to trial. This requires some "discerning the truth," but it is a limited function. The trial itself is more appropriate for a more complete airing out of the truth.

"Would an acquittal make anyone feel better about this case?"

The case will rankle regardless but the grand jury is done in secret and is a one sided affair. So, yes, I think a public trial -- which is specifically protected by the Constitution -- with a full airing with cross-examination and so forth would make people feel better. At the very least, many claim to want this. I have heard multiple people say as such. I take them at face value.

Another thing it could have done was avoid the (imho justified) belief that a discriminatory special procedure was supplied here. The prosecution used the grand jury in a way atypical -- as a way to in effect put all the evidence out there for the public (represented by the jury, atypically here the grand jury was even 12 people) to weigh. This included having the accused testify which apparently is also atypical at least in this sort of case. It made people very cynical. Some poor black (or white) defendant will later on think "hey, why didn't I get this same treatment? heck, I'm stuck in jail with a simple information or "ham sandwich" grand jury procedure!"

The Trayvon Martin trial didn't make everyone feel hunky-dory, but it wasn't quite as bad as this. I do think the grand jury option (one the prosecution chose) can be done even when the prosecution itself is at best agnostic. It provides a means for the public itself to talk, in the past the grand jury in fact pushed for something a prosecutor might not. Regardless of if a trial would have mattered, on that ground alone, an argument can be made submitting this to the grand jury was okay. This still might not justify how it was done.

Posted by: Joe | Nov 26, 2014 10:54:04 AM

"And even if they're not sure they have proof beyond a reasonable doubt, they'll often roll the dice on a trial."

I disagree. Although I cannot speak from firsthand experience, it seems unlikely that a prosecutor would be willing to go to trial if there is a lot of countervailing evidence. A common criticism of prosecutors is that they vigorously seek to preserve their conviction rate above all else. If they feel like they can just barely meet the probable cause standard, they most likely will not push the case further. After all, once it goes to trial, the prosecutor is legally required to disclose all of the exonerating evidence to the defendant.

I agree that the prosecutor should probably make sure that typical grand jury proceedings include exonerating evidence/testimony if available. The fact is, this is a highly publicized case and we don't know exactly how it differs from the typical grand jury investigation. There are probably a lot of criminals who are not indicted, but we don't know because the process takes place in private. That's not necessarily a condemnation on the process, by the way.

"'separate fact from fiction' -- isn't that more the job of the petit jury?"

I think that's the job for the jury, period. The jury (grand or petit) is supposed to discern the truth as much as possible. I would prefer that every jury do it. I fail to see how taking this case to trial would change anything. I am convinced that Wilson would have been acquitted because a decent defense lawyer could easily implant doubt given the conflicting evidence and the number of witnesses that changed their stories or were inconsistent. Would an acquittal make anyone feel better about this case?

Posted by: TJM | Nov 26, 2014 9:33:13 AM

If the prosecutor doesn't think he can prove a case beyond a reasonable doubt, he can simply not present it. In fact, he's arguably ethically required not to.

There was absolutely no legitimate reason for this kabuki theatre.

Posted by: Rick Goldstein | Nov 26, 2014 1:54:58 AM

As to "resolved sooner," wasn't this grand jury a drawn out affair? If the prosecution simply submitted an information and the time spent was instead spent for the trial, would it amount to much more time? And, yes, "perhaps this is the specific discriminatory event."

"separate fact from fiction" -- isn't that more the job of the petit jury?

And, as suggested by that term, is it usual for the grand jury to be twelve members? My assumption is it is usually larger than that. Thus, "grand" jury. Finally, though it's supposed to be private, I wonder if the actual breakdown of the vote will come out.

Posted by: Joe | Nov 26, 2014 12:16:41 AM

I've been thinking about how the Ferguson Grand Jury, and any other element of the Ferguson incident, departed from general practice, thus revealing something fishy (read: racist) in this process specifically. If there was nothing wrong done, then this incident is yet another illustration of endemic racism in the system of criminal justice, with nothing cognizable on which to base a claim--constitutional or otherwise. (See McKleskey v. Kemp).

Initially I thought it was wise for the prosecutor to impose a "disclose everything" policy in the Grand Jury, even allowing the officer to testify. But wait! Prosecutors normally cherry pick the evidence they show to get an indictment, much to the chagrin of defendants. In the Ferguson Grand Jury, then, the departure from normal practices entails (1) the disclose everything policy, which supports the defendant, and (2) the prosecutor offering to highlight for the Grand Jury the inconsistencies in the evidence. Normally, prosecutors will do everything they can to get an indictment. And even if they're not sure they have proof beyond a reasonable doubt, they'll often roll the dice on a trial. In Ferguson, in contrast, the prosecutors seemed to do everything to AVOID an indictment. Instead of highlighting for the Grand Jury the defendant's guilt and the need to indict, the Ferguson prosecutors seemed to try to convince the Jury of the officer's innocence.

Will St. Louis prosecutors now have a "disclose everything" policy for black defendants? Will they allow the defendants to testify at the Grand Jury? If not, perhaps this is the specific discriminatory event in the Ferguson process.

Posted by: Steven R. Morrison | Nov 25, 2014 9:32:03 PM

To your first question, I also had to ask a friend for input. Apparently it is common for the grand jury to discern significance/credibility in determining probable cause. But in most cases, the prosecutor does not present exonerating evidence, so the evidence that the jury sees is consistent. Of course, the prosecutor knows that if the case goes to trial, he will need to provide any exonerating evidence to the defense.

This case was different because the exonerating evidence was presented. This was probably a tough call for McCulloch--if he doesn't present the bad evidence, a true bill will be issued, but it will lead to an acquittal at trial (my friend noted that this is exactly what happened with Trayvon Martin). But by presenting the evidence, the case is resolved sooner.

Posted by: TJM | Nov 25, 2014 7:10:01 PM

I still want to know how I can get my clients access to this kind of grand jury hearing. I never heard or seen anything like it.

Posted by: Brad | Nov 25, 2014 10:54:29 AM

Regarding the second question, the DA mentioned that at least one witness testified that Brown charged Wilson, who shot at Brown (possibly hitting Brown). Brown then stopped, and Wilson stopped shooting. Brown then charged again, and Wilson fired additional shots and killed Brown. I am guessing this is the testimony that suggested to the grand jury that the initial shots did not incapacitate Brown.

Posted by: TJM | Nov 25, 2014 10:49:34 AM

With regard to your third question, it is not entirely uncommon for a target to testify before the grand jury in the federal system (I don't know about the state systems). The U.S. Attorney's Manual (Section 9-11.152) specifically provides that AUSAs should generally allow a target to testify before the grand jury if the target makes such a request. Typically, the only targets to appear before the grand jury are those suspected of committing white collar offenses. They tend to be articulate and persuasive, so they want to take a shot at avoiding charges entirely by telling their side of the story to the grand jury.

Posted by: NewProf | Nov 25, 2014 10:32:40 AM

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