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Ferguson Draws Attention To The Basic Problem With Grand Juries

Written by Devtome wiki contributor Bomac

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A grand jury proceeding is often used in special cases. It takes the place of a preliminary hearing. They are similar in that they decide if a defendant will go to trial or not. They also share in common the fact that (depending on the state) neither is necessarily required to bring a case to trial. 1)

Grand jury proceedings can be divided into two types:

  • Those looking into the alleged crimes committed by citizens
  • Those looking into the alleged crimes committed by police officers

As a matter of practice, not of law, though, they are run in completely diametrical ways.

What's The Difference?

For the vast majority of grand jury investigations, the private citizen / non police ones, the prosecutor plays her normal prosecutor role. For police grand jury proceedings, she plays the role of a defense counselor. This is not the way it is supposed to be. It is just the way it is.

NOTE: There might be a grand jury investigation of a citizen, once in a blue moon, that is run like one for a cop. In such a case, it would be a highly protected citizen, a sort of made man, if you will. Conversely, perhaps there has been a grand jury proceeding for a police officer at some point in the history of the United States – or there may be one in the future – that is like a grand jury investigation of a citizen… however, that is fairly doubtful.

The Difference Between A Grand Jury Proceeding, A Preliminary Hearing, And A Trial

Preliminary hearings are usually much shorter proceedings, often completed within a couple hours, and sometimes within minutes. Grand jury proceedings can take days, weeks or even months.

Other differences include the fact that a grand jury has no judge, and no defense, while a preliminary hearing has a judge and no jury, but has a defense attorney. Both preliminary hearings and grand jury investigations have prosecutors. (Except, of course, as covered above, in the case of police grand juries, where the prosecutor unofficially wears the hat of a defense attorney.)

There are also similarities between a trial and grand jury proceeding. They both have a defendant, but in a grand jury proceeding, she may not as yet, and potentially may never, be charged with a crime. On the other hand, she may be charged with a crime and either is in jail, or is out on bail.

The defendant may or may not be part of the grand jury proceedings in terms of being required to testify and answer questions of from the prosecution, but she has no right to present her defense, like she would in a trial or, to a lessor extent, in a preliminary hearing. It is also possible that she is not a part of the proceedings at all. In fact, she may not even be aware they are going on.

Obviously, there are jury members 2) who are presented evidence and vote on that evidence at the end of the investigation. There are witnesses, who can be compelled by summons to appear. They testify under oath and can be charged with perjury if they lie.

Grand jurors deliberate and decide, not innocence or guilt, but whether or not there is probable cause to go forward with a trial. That is to say, if there is enough evidence to support the indictment of the defendant. That would mean that she will then face a trial, in which the prosecutor will have to present enough evidence to convince a separate jury of her guilt, and in that trial, she will be able to present her defense, and defense witnesses. Her lawyer, will be able to cross examine every witness the prosecutor brings to the stand, and the prosecutor will cross examine the defense witnesses.

However, if the grand jurors deliberate and decide there is not enough evidence to support probable cause, the defendant will rarely be indicted, or have to defend herself­ on the charges they were investigating. (The double jeopardy rule, which states a defendant can not be forced to more than one trial for the same crime, does not apply to grand jury decisions, since they are not trials. A prosecutor could, but rarely ever does, conduct another grand jury, or indict on her own, after an initial grand jury has failed to deliver an indictment. However, the truth is that grand juries rarely fail to deliver indictments.) In most cases, if the defendant had been arrested and was in jail, she will be released, unless the prosecutor decides to charge her with a lessor crime, and obviously, unless she is also being held for other crimes.

Adversarial Proceedings

The trial process is known as adversarial, in that there are two sides, each presenting their points. In a grand jury proceeding, the adversarial element in missing. There is only one side, the prosecution – except, of course, in cases of police defendants (or an occasionally other favored status individual), in which case the one side presented is that of an unofficial defense.

It is in those latter instances where the lack of adversarial interplay is probably missed the most. It wouldn't be quite as bad if the prosecutor were not compromised, playing the unofficial role of defender, but since she is watching out for the cop, no one has the back of the citizens.

In grand jury proceedings, jurors do not have the benefit of adversarial protocol. Usually that are presented with the prosecutor's side, except for when the defendant is a police officer, and then they tend to get the side of defense attorney would present. For instance, in the recent Ferguson grand jury proceeding, the type of questions that witnesses often received were the same type a defense attorney would ask them on cross examination.

Since I personally agreed with the grand jury decision, it would be easy for me, operating out of my particular bias,3) to simply see the prosecutor as being meticulous, playing the role of both prosecutor and defense lawyer, in an effort to help the jury have the most accurate information. In reality though, I can't deny that prosecutors have a strong history of watching out for cops.

For example, in the Ferguson grand jury, they would call back witnesses who had testified on earlier days. Many of them were caught by the prosecution changing their story, to match what forensics evidence was showing, even though it directly contradicted their earlier testimony. Almost all of these changed testimonies hurt the case for prosecuting the police officer.

Is There A Fault In Being Meticulous?

On the one hand, how can you fault him for bringing more honesty to the investigation, highlighting the changing stories of alleged eyewitnesses? Multiple people ended up admitting they had lied and did not actually witness the events they had testified about. It would be sloppy prosecution to allow such witnesses go unchallenged; wouldn't it?

On the other hand, a number of people who are going over the thousands of pages of eyewitness testimony and other evidence in this case, have said that it's apparent the prosecutor, Bob McCulloch and his team, were watching out for the very person they were supposed to be prosecuting. To McCullough's credit though, I have to admit he took a witness to task who had been confirming Officer Wilson's account. Even though, overall, McCullough was trying to protect the officer, he told the jury to more or less take this woman's testimony with a grain of salt because the witness was not mentally stable.

Personally, I didn't really mind the conflict of interest in this particular case, especially since, as mentioned above, the prosecutor took witnesses to task when he felt they needed it, regardless if their testimony supported or went against the officer's – but generally speaking, I believe this is not a good situation. Prosecutors primary concern should not be the protection of the defendant, cop or not. 4)

Prove It!

If you want to prove that prosecutors switch sides when the grand jury investigation they are leading is for a cop case, all you have to do is check out the statistics. The last time the government released a tally of federal grand juries was 2010, four year ago. We'll use those numbers, but there is nothing to suggest any other year would be much different.

There were 162,000 grand jury proceedings in the USA. 5) With the exception of only 11, all those grand juries returned an indictment every single time. 6)

Is there any wonder that former Chief Judge of the Court of Appeals for the state of New York, Sol Watchler, 7) once said that a prosecutor could get a grand jury to indict a ham sandwich if he wanted to? 8)

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For those keeping score at home, that means that 99.999932098765 percent of the time, any defendant being investigated by a grand jury, on average, must face trial. You can imagine that the actual conviction rate from the trials of all those defendants was nowhere near almost 100%, but the point is, it's extremely rare for grand juries not to return indictments. They are thought of as rubber stamps of the state. 9)

NOTE: This statistic is for federal grand juries. While I don't have the numbers for Missouri or any state, experts say it is very similar on the state level; that is, it's extremely rare.10)

University of Illinois law professor, Andrew D. Leipold is quoted on the website, fivethirtyeight.com as saying, “If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong.” If you read this 66 page, extremely heavily footnoted report, authored by Leipold, which is critical of the grand jury apparatus, you can't accuse him of shooting salad. He's definitely got the chops to be able to expertly express such an opinion.

Flip Side Of The Coin

The flip side of this coin is that statistics prove that grand juries almost never indict police officers.11) This is not exclusive to grand jury cases, by any stretch of the imagination. Even when grand juries are not the legal apparatus being used, police officers rarely get indicted. Moreover, even when they are indicted (and therefore forced to go to trial) they are usually found not guilty. Astoundingly, that tends to be the case even when there is video proving their guilt. For instance, think of Rodney King and Kelly Thomas.

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So, as we can see, the other side of the grand jury coin is seen when the grand juries are investigating accusations of police homicide and brutality. When that happens, that statistic turn around and it suddenly becomes extremely rare. Here are statistics from Dallas grand juries that investigated 81 separate shootings of citizens by police officers from 2008 to 2012. Keep in mind, if they were not investigating police, in all probability there would have been 81 indictments, but that was not the case. It's not even close. There was only one indictment.

See How That Works?

If you aren't a cop, it's almost automatic that a grand jury will decide to indict. If you are a cop, it's the complete opposite. What's wrong with this picture?

If you have read either one or the other of the two previous contributions I posted on the Devtome wiki regarding Ferguson, you may be surprised that I'm writing this (since I sided with the grand jury's findings.) I don't find that, in any way, to contradict what I'm reporting here. Cases need to be looked at individually. From what I've learned following Ferguson, I don't believe there is probable cause to indicate that Officer Wilson committed a crime. However that doesn't mean that police should be given cart blanche to apply deadly force on a whim.

The Problem Is Real

There is a huge problem with police abuse. When it is shown to have taken place, police must be held accountable. There are extremists on both sides of this issue. There are those who feel like cops are always in the wrong, and there are those who feel that cops can do no wrong.

Ideally, grand juries should be used to help when a cop is guilty of a crime against a citizen, but unfortunately this legal apparatus ahs become a political tool designed to keep cops from being held accountable, and to let prosecutors have an out for not indicting the cops on their own.

Ferguson is a perfect example of the latter 12) The prosecutor, Bob McCulloch could have either chosen to indict Wilson on his own, or not indict him on his own. To do so, he would have to deal with possible political consequences, that he was able to avoid, by leading a grand jury to the decision he wanted. So now, it's a matter of, the people have spoken, rather than, the prosecutor decided not to indict. He does not have to answer to why he made such a decision.

As we all have learned, not through the public education system so much as from the opening of the TV show, Law & Order, law enforcement has two tiers. The police and the prosecutors. It's the same team. There is a lot of reluctance to go after someone on your team. Police often are let go, rather than arrested by other police, when you or I would obviously go to jail if we had done the same thing.

Then, even when cops are arrested, prosecutors often go easy on them or drop the charges, solely because they are on the same team. Since killing someone with a gun can have extremely serious consequences, prosecutors are usually not happy about the prospects of trying and winning such cases against police officers.

This is nothing new. There have always been two sets of laws. One for most people, and one for police and other privileged people. Grand juries have done nothing to change this. The fact of the matter is the main reason grand juries are used, is to provide political cover to prosecutors and governmental bodies.

About half the states have done away with grand juries. With the abysmal results they have had in both protecting citizens from unwarranted criminal charges, and making police be accountable for their on the job actions, who can really fault any state that has put the kibosh on the grand jury option?

The Advantage Of Adversarial Proceedings

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In a trial, you have adversarial proceedings. You have two opposing sides presenting evidence. One side presents evidence of the defendant's guilt, and the other side presents evidence of her innocence – or perhaps extenuating circumstances that should be taken into consideration.

Each side gets to evaluate the opposing side's evidence, providing counterpoint questions, as well as suggest their interpretation of such evidence to the jury. Adversarial presentations are usually the best way to ascertain the truth, or at least, the closest proximity to the truth that is possible. Jurors have a much greater chance of discovering truth in a trial (presuming it's fair and not fixed, of course), than they do with a grand jury investigation.

For another example where the lack of adversarial presentation of data hinders people's ability to discover the truth, one need to look no further than the crowd-sourced online encyclopedia Wikipedia. They pretend to have an unbiased perspective on anything and everything. One of their underlying tenets of Wikipedia is “neutrality.” It's an absurd notion that is as laughable as Fox News' tagline, “Fair and balanced.”

Nothing is neutral. No one is unbiased. Get over it already!

In Wikipedia, the alleged protocol is to present both sides of an argument (as if there can only be two sides to anything.) In reality though, they are gatekeepers of the status quo in fields such as science, medicine and even history and archeology, among others. They are pawns of the powers that be, posing as arbiters of truth.

For example, this article by Dana Ullman shows how the “editors” of Wikipedia are laughably biased on the topic of homeopathy, a type of health care that takes a contrary approach to allopathy, (traditional/“modern” medicine.) 13) The website makes statements regarding homeopathy that are provably false. The website uses double standard protocols when it comes to what can be posted in support of homeopathy and what can be posted against it. The writers repeatably break Wikipedia's own protocols. When anybody tries to edit it to present another point of view, without even deleting anything that is already in the article, it gets taken out, usually in a matter of minutes.

There is a single consensus allowed and that is why, if they don't change how it is run, the public will never be able to use Wikipedia to get the truth about homeopathy and countless other topics. Instead of pretending to have a neutral point of view that gets to the truth matters, they need to allow adversarial viewpoints.

It doesn't matter if you are surfing the Internet, trying to learn something, or sitting on jury, trying to decide someones innocence or guilt. An adversarial presentation with point and counterpoint arguments is going to serve you far more than having one side pretending it has the untouchable truth.

Many people who are critical of the Ferguson decision have not already judged the officer as guilty. 14) They wanted a trial so that more information would be forthcoming, and so that there could be another viewpoint, to contrast with McCulloch's defacto role as defense counsel to Darren Wilson. 15)

Good Point, But...

I understand the point and find it to be a valid opinion. I don't, however, believe that any time a cop shoots and kills a suspect she should be placed on murder, or even manslaughter charges automatically, regardless of circumstances, which is what it seems like many people wanted in the Brown-Wilson case.16) I truly don't think we should put a cop on trial just because the citizens are calling for her head. What we have here is a very tough situation; trying to find a way to stop police brutality and thuggery while also trying to protect police who have to use deadly force to ensure that they are not the ones who end up dead before their time.

It would be nice if grand juries were part of the solution, but history has shown us, that is not at all the case.

Crime | Law | News

1) As Wikipedia says, “A preliminary hearing is not always required, and its requirement varies by jurisdiction.”
2) It's obvious, due to the name, “grand jury”. Right?
3) I mention my bias not as a confession of a wrong doing, but as a fact of life that i share with everybody. If you don't recognize that you have biases, that's only because your biases aren't allowing you to do so.
4) That's not to say that if a prosecutor believes someone is innocent, she should go ahead and bring charges. In such cases, she should take accountability for refusing to prosecute, rather than run a grand jury investigation into a preordained decision not to indict.
5) I'm quite certain that number is rounded off, probably rounded down, although I do not have the exact figure.
8) What a great quote. Watchler is, shall we say, quite the character. He said he had feared that his ham sandwich quote would turn out to be the only for which he would be remembered. Later though, after going cuckoo for Cocoa Puffs, not just by cheating on his wife during a 3 year affair with the step daughter of his wife's uncle, but by criminally harassing her after the affair ended, including threatening to kidnap her daughter, Watcher went to prison for a year. Upon release he said that he suddenly wished that the ham sandwich quote, was indeed, the only thing for which he would be remembered. It was kind of ironic that he would criminally lash out against a woman he had been intimately involved with, since a court decision he authored set the precedent in the United States for men being liable for raping their wives. He wrote, “A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.”
9) They didn't start out that way. It wasn't their purpose, but that is the reality of grand juries.
11) It would be interesting to see if anyone of those 11 anomalies in the previous statistic were grand juries conducted for investigating police officers. Since it was a federal stat, though, there may not have been any since those are usually done at the regional level (city, county or possibly state.
12) And many people, of course, feel the Ferguson grand jury also exemplifies the former as well. They believe Officer Wilson was let off the hook.
13) I say homeopathy is contrary to allopathy, but that is not to indicate that people who practice homeopathy believe there is no place for allopathy. They take different approaches to health care. Any good homeopathist doctor has absolutely no qualms in telling her patients that they should seek allopathic help at various times when homeopathic remedies are not the answer to their health issues. Indeed many allopathic medical doctors also have degrees as doctors of homeopathy.
14) Yes, most of the protestors on the street have made the prejudgement; especially the agitators and the violent ones.
15) Of course, the question arises, if the prosecutor wanted Wilson to walk, he could have done a bad job prosecuting it during a trial. That's true. A trial, though, is more transparent and can be followed by everyone as it is happening. He would have more pressure to play the adversarial role, although there is no guarantee he would have.
16) I can't even imagine being a cop. I'll always remember the name Patrick Behan. He was a Broward Sheriff's Office deputy, who was sitting in his cruiser, filling out a shoplifting report in the parking lot of a convenience store not far from my home, who got shot in the head (and killed) because some punk kid wanted to know what it felt like to kill a cop. I do admit there is a culture where it seems like when a cop draws a weapon it's like they believe they have license to kill. Down the block from me many years ago, I heard several pops. It was the sound of cops killing a fugitive who was running from them. They had knocked on his second floor motel room. He hung down from the window and let go. He couldn't have even been able to run very fast after a drop like that. They had the alley covered just in case he took that option. Several of them opened fire, even though he was not trying to confront them. No cop got in trouble. It was considered good police work. Something has to be done in regards to police culture, as well as laws that make it OK for cops to kill when it's not necessary, and especially when suspects are fleeing and not threatening the cops. In a situation like what Darren Wilson went through, though, I don't see where the fault is. How can we overlook the fact that Michael Brown chose to push a cop back into his vehicle and then reach through the window and punch him in the face and then try to take his gun away? How can we fault the Officer for giving chase when that is his training? How can we fault him for being in fear of his life, which is grounds for the use of deadly force? If Brown's cohort, Dorian Johnson had not been lying when he said that Brown was shot in the back while fleeing, and then he stopped and put his hands up and said he was unarmed and don't shoot, showing compliance, at which point Wilson summarily executed him, then yes, that would be different. Forensic evidence and multiple eyewitness testimony stand in direct contradiction to such specious statements. I don't understand how people find it so easy to take Brown's responsibility and accountability out of the equation. Surely, there are countless better examples for people to get upset about.

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