Ferguson

I am always hesitant to discuss inflammatory subjects such as Ferguson, but there is a lot of bullshit being spewed from all corners.  I asked a friend of mine who is a prosecutor to comment on his thoughts regarding the Ferguson Grand Jury process.  After his thoughts, I will give a couple of my own.  So without further adieu, after the jump, Mr. Anonymous Prosecutor, ADA:

"When a prosecutor goes to the grand jury he can take any of three approaches: First, he can go in and directly ask the grand jury for a "True Bill of Indictment." Second, he can go in and ask the grand jury for a "No Bill."  Third, he can refuse to express an opinion and tell the grand jury that it is ultimately up to them.  The grand jury in every term has instances where they do as the State requests and other times will disagree with the prosecutor's requests.  In other words, is not uncommon for a prosecutor to request a "No Bill" and still receive a "True Bill of Indictment."

There are of course other ways a prosecutor can affect the grand jury.  The State generally does not allow counsel for the defense to be present during the presentation of evidence.  There are no rules of evidence either.  This leaves the prosecutors and the police departments in control of the evidence and how it is presented.  That is not to say the grand jury can't affect its own desires on which evidence it hears or who they hear it from.  

Any given grand jury is made of 12 people.  Usually they are total strangers.  The people who make up the grand jury have the ability to ask questions of witnesses and the attorneys present.  Nothing is off limits to the grand jury, with-in reason.  They even have the power themselves to issue subpoenas, which is largely used to secure records, documents, etc.  However, they can also request further testing or to hear from more witnesses.

Robert McCulloch's statement was an attempt to describe the process the lead to the Ferguson Grand Jury's ultimate decision to No Bill the case.  The difficulty in that task is the secretive nature of the grand jury process.  No one is allowed to discuss the specific evidence, testimony, questions or events of the deliberation.  This applies to witnesses, attorneys and the grand jurors themselves.  Mr. McCulloch tried to describe the lengthy decision in this case but had to be vague at the same time.

 My impression was that Mr. McCulloch took the third "neutral" approach.  With such a politicized case as this, there really was no other approach to take.  His descriptions of the evidence and details of the evidence especially his compare and contrasting of the eye witness testimony leads me to believe that he really did want this Grand Jury to see everything before making their decision.  Mr. McCulloch took special care to note the high value of scientific evidence.  The descriptions of the autopsy findings, bullet locations, injuries documented on both parties, and gun shot residue / stippling, was obviously Mr. McCulloch's attempt to express that a good deal of the high value evidence was presented to this Grand Jury. 

I know that once "experts" are added to the mix they have a way of manipulating the scientific evidence to lessen the objective value it has.  Mr. McCulloch discussed expert testimony as well.  It appears that the County Medical Examiner testified as well as a private doctor who was hired by Michael Brown's family to do a second autopsy.  By the end of Mr. McCulloch's statement it was clear he was trying to express a long and objective approach taken by the State and the Grand Jury. 

If my memory serves me correctly, there was even a mention of the Grand Jurors themselves asking questions and actually requesting further evidence and testing be performed. 

I expect that the very secret nature of the process however will leave some with doubt.  There is no record or court reporter in the grand jury room.  I think this is especially true given that some people may actually be looking at this with the desire to find fault.  Mr. McCulloch touched on this as well.  He described the many early accounts of what happened on social media / national media and how many of these accounts were not in agreement with the scientific evidence and even the result of heresay from people who weren't even present at the time of the shooting.  Mr. McCulloch took special exception to this describing the difficulty in dispelling these things while having an active investigation going on.  Openly discussing the facts with the media could taint witnesses necessary to further the investigation.  I expect Mr. McCulloch's reproach for the media and their involvement however will not win him any favorable press.

The system is not perfect.  If you want to find doubt and fault with the Grand Jury or the process, it is there.  The very political nature of this is highlighted by the fact that most grand juries indict hundreds of cases with little to no fan fare.  Compare that to a 45 minute presentation by the prosecuting attorney last night.  This will close the State criminal side of things.  However, Officer Wilson is still subject to a federal civil rights investigation for the shooting.  I expect the civil suit will draw Officer Wilson into it as a party as well.  The matter may be done, but it is certainly far from over."

Anonymous


Now a couple of my thoughts:

It has come out that McCulloch did not recommend a finding.  However, being as the Grand Jury had been empaneled prior to this, and was extended for the Wilson decision, it is very obvious that they had heard McCulloch recommend findings prior to that, and I can only assume they read into his non-request that he did not want to indict Wilson.  Supposition on my part? Yes, but knowing how the Grand Jury process works, I feel it is a legitimate guess.

I do agree with anonymous that the neutral approach was McCulloch's best bet for perceived fairness.  However, switch the roles.  If Brown had been accused of shooting and killing Wilson, I guarantee you that McCulloch would have recommended he be indicted for Capital Murder.  In the actual process, he submitted tons of evidence.  But in my role reversal scenario, he would have presented as little evidence as possible to show probable cause for an indictment.


Was Wilson justified in killing Brown?  Maybe, there is evidence to support that scenario.  Was it murder under the color of the law? That too is a possibility.  However, we will not know unless less there is a civil trial, and we get a chance to see all the evidence.  Overall, the death of Brown, and the subsequent protests and riots, along with the police response reveal a deeply flawed system, that we must fix.