Ferguson, MO Police Shooting

Saint Louis County Police today announced the arrest of 20 year old Jeffrey Williams in the shooting of two police officers in Ferguson, MO Thursday night.  Williams, who is on probation for receiving stolen property, was charged with numerous felonies.  He was found with a gun which the police say was used in the shooting.

The shooting occurred during one of the many protests that, inexplicably, continue even after the protesters demands have been met.  The Chief of Police has resigned and several officers and one civilian employee were fired after sending racist emails.  A grand jury and the Department of Justice have investigated.  The police department has been castigated.  Mea culpa, mea culpa.  Everyone has said everything that can possibly be said.  Yet, the protests continue.  Go figure.

Back to Jeffrey Williams. As noted above, it has been reported that Williams was found with the gun used in the shooting.  However, it is unlikely, if a gun was found on or near Williams, that the gun has already been taken to a firearms examiner and conclusively determined to be the gun used in the shooting.  More likely, at best, Williams was found with a gun of the same caliber as the weapon used in the shooting.

Notwithstanding that the gun has not been tested, Williams knows that the gun recovered from him is the one used in the shooting.  So, he admits, as he must, to firing the shots that struck the police officer.  However, he says the officers were struck by mistake.  He contends that he was firing at a robber.  There are several large holes in this story.

First, does anyone show up at a protest in a vehicle?  Perhaps, he thought he was going to a motorcade, rather than a protest.  On August 28, 1963, Martin Luther King, Jr.’s “I Have a Dream” speech on the National Mall attracted a half-million people.  Not one of those half-million people were in vehicles.  People do not protest in vehicles.  To do so, would turn the protest into a traffic jam.  Unless there was an antique car show in town, this part of Williams’ story does not make sense.

Second, with scores if not hundreds of protesters on the street, why would any putative thief target the guy in the car who could leave his window rolled up and speed away?

Third, the same protesters who are potential victims of a thief also serve as witnesses to the crime.  A crowd is a good place for a pickpocket to work.  Otherwise, it is not a good place for thievery.

Fourth, Williams claims his shots missed the robber who presumably was in close proximity, but hit the police officers who were some  distance away.

Fifth, if Williams was truly acting in self-defense, why did he not turn himself in to the police?  I predict that Williams will say that he was fearful of the Ferguson police, but why could he not have taken witnesses with him when he surrendered?  Wanted persons do that all of the time.  For good measure, the press could have been summoned.  The police would have been on their best behavior.

Finally, no one saw Williams protesting, ever.  A number of regular protesters have been interviewed, and none of them ever saw Williams.

Unless there is something I don’t know about, the case against Williams seems strong.  He admits firing the shots and his defense is bogus.  If the case goes to trial, look for the defense to put the Ferguson police on trial and attempt jury nullification.





Legalization of Marijuana: An Issue of Federalism?

Alaska has joined Colorado and the State of Washington in legalizing the recreational use of small amounts of marijuana.  Legalization in these states does not, however, totally liberate recreational marijuana users from the proscriptions of the law.

While it is now no longer illegal to possess small amounts of marijuana under state laws in Colorado, Alaska or the State of Washington, possession of any measurable amount of marijuana remains illegal under federal law.  Thus, the reform of marijuana laws gives rise to a conundrum.  You can toke away in Aspen, but you could wind up with a federal beef.  Whether your conduct results in arrest depends on whether you are sharing your lift with a local cop or an DEA agent.

In an effort to minimize this disparity (and energize its base, which, if it is smoking marijuana needs some energizing), the current administration has decided not to enforce federal marijuana laws in those states which have legalized it.  However, this lack of enforcement does not completely resolve the problem of conflicting state and federal laws.  For starters, the next administration could reverse course and resume enforcement of the federal marijuana laws.  Also, if residents of a state which has not legalized marijuana can be prosecuted under federal law, they may be denied equal protection of the laws as against their fellow citizens who reside in a marijuana legal state.  Then, too, suppose a federal marijuana conspiracy investigation encompasses several states.  The federal government cannot very well prosecute the conspirators in Idaho, but not those on the other side of the border in the State of Washington.

Of course, debate on the issue of the legalization of marijuana has been heated for some time.  Ignored in this debate is the question of whether the federal government has any business in regulating the sale or use of drugs  in the first place.

The federal government is one of limited powers.  The Constitution grants to the federal government only certain powers.  Those powers not given to the federal government are reserved for the states or to the people.  A fair reading of the Constitution and of the practices in the early days of the Republic suggests that, with limited exceptions, the federal government does not have the authority to impose general criminal penalties, including penalties for drug possession and sale.  Regulating the sale and possession of drugs is left to the states which have enacted a full panoply of drug laws.  There is no need for federal duplication.

Visit any state courthouse.  Look at the criminal dockets.  They are lengthy.  Then, go across the street to the federal courthouse.  There are relatively few criminal cases.  This is because the states regulate theft, burglary, assault etc., and have done so, quite effectively, for centuries.

So, why does the federal government stick its nose into what is essentially a local matter, creating in the process two sets of parallel criminal laws?   And, the two sets of parallel laws do not have parallel punishments.  As a rule, the federal offenses carry greater penalties than their state counterparts.  Therefore, an offender’s punishment depends not on what he has done or how many times he has done it, but the fortuity of whether his offense was detected by state or federal authorities.  There is no logic there, right?

With the exception of proscribing importation of narcotics, which only the federal government can do,  and the regulation of drugs in the District of Columbia and in the territories, powers given to the federal government in the Constitution, there is no reason why the states can be left to enact whatever narcotics laws they wish, leaving the federal government to spend its trillions elsewhere.  The states are fully capable of regulating every other aspect of drug use and distribution, if they choose to do so.  If state lines are crossed, these cases can be investigated through multi-state task forces with or without the facilitation of federal authorities.

Let’s leave narcotics laws to the states.


American Sniper Trial: State of Texas v. Eddie Ray Routh

Never before in the history of the American criminal justice system has an accused gone to trial with such unfavorable media attention as Eddie Ray Routh, the accused killer of American Sniper Chris Kyle.   While it is not uncommon for a defendant to receive unfavorable media attention on the eve of his or her trial, i.e., the Boston Marathon bomber, never before has a defendant gone to trial while a movie about his “alleged” victim was being played in theaters throughout the nation.

N.B. The term “alleged” is used in this post solely in recognition of Mr. Routh’s presumption of  innocence.  This is done notwithstanding that Routh’s attorney has admitted that Routh killed Kyle and that Routh’s defense will be not guilty by reason of insanity.  There is no doubt that Routh killed Kyle.  There is nothing “alleged” about it.  Nevertheless, until proven beyond a reasonable doubt, the term “alleged” must be included in this narrative.

Texas Governor Greg Abbott compounded matters by declaring “Chris Kyle Day” in the midst of jury selection.    The timing of this announcement was completely unnecessary.  It could have waited until Routh’s trial was completed.

An infamous crime will always generate publicity.  The publicity will almost universally place the accused in a negative light.  The danger of this negative publicity is that it might taint the pool of citizens from which the defendant’s jury will be selected.  Criminal defendants attempt to bypass negative pretrial publicity by seeking to change venue.

Venue is to be contrasted with jurisdiction.  Jurisdiction is the power of the court to hear the case.  Routh is being tried for an offense against the State of Texas.  Any Texas state court has jurisdiction to conduct Routh’s trial.

Venue is another matter.  Venue is the place within the jurisdiction authorized to hear the case.  Various states have various rules concerning the place where the trial must be held.  In a criminal trial, the general rule is that trial will be held in the county where the offense allegedly occurred.

A criminal defendant claiming unfair prejudice because of pretrial publicity can ask the court to move his or her trial to another court within the jurisdiction.  This remedy will work well where the pretrial publicity is localized.

If the pretrial publicity were confined to the location where the alleged offense occurred, a change of venue to a location outside the area where the alleged offense occurred would cure any prejudice.  The trial would still have to be held in the state where there is jurisdiction, but it could be moved far away where the pretrial publicity does not reach.  Texas is a huge state.  If the media attention was localized, the venue could be moved to some distant county and Routh would not be subject to negative pretrial publicity.

However, in this case, the pretrial publicity consisted of a movie made about the decedent.  The movie was circulated nationwide.  A change of venue to some remote part of Texas would not alleviate the effect of this kind of pretrial publicity.

Routh needed both a continuance and a change of venue.  He needed a continuance until the force of the movie’s release was spent, preferably after sales of the DVD had peaked, and he also needed to move the trial away from the location where the offense occurred in order to mitigate the prejudice of local media accounts which would again arise whenever the trial was commenced.

To my understanding, Routh’s counsel moved for a change of venue, which was denied, but he did not move for a continuance.  Without the latter, the former was a useless gesture.

Technology IA: An Update on Tasers

As noted in a previous post, while I support the use of Tasers by police departments, there are dangers inherent to the deployment of Tasers.  The danger was brought home in a recent incident in Fairfax County, VA.

On Tuesday, February 2, 2015, 37 year-old Natasha McKenna, an inmate in the Fairfax County Adult Detention Center, was tasered by deputies of the Fairfax County Sheriff’s Department.  McKenna, who reportedly was in the jail’s mental health unit, was incarcerated pending trial for assault on a law enforcement officer.  The tazing caused McKenna to go into cardiac arrest.  She was taken to a local hospital and placed on life support.  When life support was withdrawn, McKenna died.

Full details of the incident are unavailable.  What is known is that McKenna was being readied for transport to court.  She refused the deputies commands and physically resisted.  What commands were refused and the extent of the physical resistance are unknown.  Typically, when an inmate is being transported to court, the inmate is ordered out of his or her cell, is searched for contraband, and is escorted to a transport vehicle.  I suppose that McKenna was ordered to leave her cell, refused to do so, and, when the deputies attempted to forcibly remove her, she fought them.  What follows is based on my supposition.  If additional facts become known, I reserve the right to alter my analysis.

Before judging the actions of the deputies, the alternatives available to them must be evaluated.  The deputies could have allowed McKenna to remain in her cell.  She would not have gone to court and would have remained in jail.  Most inmates want their day in court, realizing that the only way to attain their freedom, short of escape, is to have a judge order their release.  Leaving McKenna in her cell might be punishment enough for her disobedience.  On the other hand, discipline must be maintained at the institution.  If the deputies allowed the inmates to regulate their own movement, chaos would result.   Also, what about the judge who is waiting to hear McKenna’s case?  The deputies cannot ignore the court’s calendar.  So, the deputies had to remove McKenna.  The question was how.

The deputies certainly could have physically overcome McKenna’s resistance by sheer use of force.  There are a lot of sheriff’s deputies and only one McKenna.  In a fight, they win.  This course of action would run the risk of serious injury (broken bones, concussion, even cardiac arrest – see Eric Garner) to both the inmate and the deputies.  The deputies chose to Taser McKenna, rendering her temporarily immobile, so that they could apply restraints and move McKenna where she needed to be.  One cannot say this was an unreasonable choice.  Incidents of taser fatalities are rare  The deputies did not have a crystal ball.  We cannot blame the deputies for this one.

The lesson that we should take from this unfortunate incident is that the deployment of Tasers is not without risk.  However, on balance, when judiciously employed, the use of Tasers reduces deaths and serious injuries.

Technology III: Body Cameras

This final installment on technology in the criminal justice system concerns police body cameras.  They are, unequivocally, a great idea.  Really, there is no dispute about it.  Police body cameras keep both the police and those with whom the police interact in line.  When people know they are being recorded, the behave themselves.  Also, any misbehavior is easily proven and not merely a matter of two conflicting versions of events.

Body cameras protect the public.  If the cop knows he is being recorded, he will not make an illegal stop or use excessive force.

Body cameras protect the police.  If the suspect knows he is being recorded, he is not likely to resist, flee or assault the officer.  Body cameras also assist in defending meritless lawsuits filed against police officers.

Body cameras protect police departments.  The use of body cameras allows police officials to identify unacceptable behavior, to discipline rule breaking officers, and to identify areas where training is needed.

So, whatever the cost, body cameras are worth it.

Technology II: License Plate Readers

This next installment on technology’s effect on the criminal justice system analyzes license plate readers.  A license plate reader is a camera usually mounted on police cruisers, although they can be mounted anywhere.  The camera scans license plates of passing vehicles and alerts the police if there is a “hit”, a “hit” being defined as a vehicle wanted for something i.e., the vehicle was reported stolen, the vehicle was suspected in an amber alert, the vehicle was used in a robbery.

The reader allows the police to identify wanted vehicles which would otherwise go unidentified.  For example, assume a vehicle was recently reported stolen.  The report of the theft was entered into the police database, but the theft was too recent for the individual officers on patrol to know of the theft.  Absent the license plate reader, the vehicle may pass right by a police cruiser and not be detected.  The license plate reader alerts the cops that the vehicle was reported stolen.  The police then make the stop, recover the vehicle, and arrest the perpetrators.

If this was all that the license plate readers did, there would be little controversy.  After all, a license plate reader is no more than a  camera and a camera is like a set of eyes.  No one would complain if a police officer saw a vehicle in public view, remembered that it had been reported stolen, and effected a traffic stop of the vehicle.  However, each license plate scanned by the reader, not just the “hits”, is stored in a database for some period of time varying by jurisdiction. Also stored along with the plate number is the date and time the vehicle was scanned and the location where the vehicle was scanned.  This storing of data is helpful to law enforcement, for example, in locating fugitives or tracking the movements of terrorists.

People are justifiably concerned that police have access to the location of their vehicles and, consequently, their whereabouts.  Keep in mind that it is the access, not the storage, that is the problem.  Storing data that no human views does not violate anyone’s privacy.   In order to mitigate the access problems, some limits must be placed on  the who, when and where of access to the database generated by the license plate readers.

The American Civil Liberties Union has promulgated guidelines for limiting the access to license plate reader databases.  The guidelines vary from on the mark to not very well thought out.  In any event, they are a good starting point for discussion of how much access should be given to license plate reader data.  The guidelines are as follows:

1. License plate readers may be used  by law enforcement agencies only to investigate hits and in other circumstances in which law enforcement agents reasonably believe that the plate data are relevant to an ongoing criminal investigation.

There is no need for the local Barney Fife to use the license plate reader to find out where his girlfriend has been spending her time while he is on-duty.  This recommendation presents a good balance between the need to effectively investigate past and ongoing criminal activity and the need to protect the innocent motorists from invasion of their right to freedom of movement unhindered by government eyes.

2. The government must not store data about innocent people for any lengthy period.  Unless plate data has been flagged, retention periods should be measured in days or weeks, not in months and certainly not years.

This recommendation misses the mark.  As noted above, the mere storage of data without any human access violates no one’s rights.  It is only when a human looks at data placing an individual at a certain place at a certain time that privacy may be violated.  On the other hand, stored data kept for an extended period of time may prove useful in solving a cold case some years down the road. So, the balance should be struck in favor of extended periods of retention.

3. People should be able to find out if plate data of vehicles registered to them are contained in a law enforcement agency’s database.

So, if Ahmed the terrorist wants to find out if there is a record of his vehicle near the location of a recent night club bombing, he can do so.  This is not a very well thought out idea.

4.  Law enforcement agencies should not share license plate reader data with third parties that do no follow proper retention and access  principles.  They should also be transparent regarding with whom they share license plate reader data.

I would go further.  I would limit sharing of data to law enforcement agencies.  There is no need for the local government to sell this database to a marketing agency.

5.  Any entity that uses license plate readers should be required to report its usage publicly on at least an annual basis.

I do not know what this means.  The entities that use license plate readers are law enforcement agencies or, at least, they should be law enforcement agencies.  Every law enforcement agency files annual reports.  What more is needed?

There will surely be more discussion as this bit of technology becomes more prevalent.


Technology I:Ferguson, MO and Staten Island, Tasers Anyone?

Let me begin by apologizing for the recent dormancy of this website.  I have been very busy dealing with my caseload.  I would now like to reinvigorate the site by commencing a series of articles about how technology is altering the criminal justice system.

Let us start with Tasers.  Taser is a registered trademark of Taser International, Inc.  The device commonly referred to as a Taser is a hand held device that delivers a pulsed electrical current.  The current delivered by the Taser sort of short circuits the electrical current that normally passes between the brain and the body’s muscles.

A Taser is to be distinguished from a stun gun.  A stun gun delivers an electrical charge that burns the flesh and causes pain.  A Taser is painless.  Also, to be effective, the stun gun must come in direct contact with the victim.  The stun gun has positive and negative terminals.  Current passes between the terminals.  To administer the current, a portion of the victim’s body must be in contact with the two terminals.  To the contrary, a Taser projects wires several feet.  The terminals of the wires strike the victim, causing the current to be administered.  To my knowledge, police departments do not deploy stun guns.

Police use Tasers when dealing with violent and uncooperative individuals.  When confronted with an unruly suspect, the police officer will remove the Taser from his or her utility belt, point the Taser at the suspect, and activate the Taser.  Wires are projected outward from the device.  The terminals of the wires strike the suspect, administering the electrical current thereby interfering with the electrical current passing from the brain to the muscles.  The suspect is loses muscle control and generally falls to the ground.  He is incapacitated for a few seconds, enabling the police officer to restrain the victim, usually by applying handcuffs.  Usually, the suspect recovers his senses in a few seconds and almost always there is no long term effects.

A Taser should not be used is situations where the life of the officer or of another is in danger.  In that case, deadly force is justified and, in those circumstances, it may be too late to use a Taser.  The ideal use of a Taser is the situation where a physically smaller officer is confronted with a larger suspect who does not want to be restrained.  Consider the example of a petite female officer, let’s say, 5’1″ and about 110 pounds.  She has graduated the police academy, so is fully versed in defensive tactics.  However, she is 5’1″ and weighs only 110 pounds.  She is on patrol, alone.  A victim reports an attempted sexual assault and points out the perpetrator leaving the scene on foot.  The perp is 6’4″ tall and weighs approximately 300 pounds.

The officer calls for backup and is advised that the nearest fellow officer is 20 minutes away.  The officer orders the suspect to halt.  He refuses.  She gives chase.  Placing her hand on the suspect, she orders him to remain.  He says, “I don’t think so, little lady”.  He brushes her hand aside, pushes her to the ground, and continues to leave the scene.

The officer cannot let this dangerous felon escape.  Yet, without a Taser, short of shooting him, she cannot force him to stay put.  So, she deploys her Taser.  The big man falls to the ground, is handcuffed, and is placed under arrest.  When the backup finally arrives, he is transported to the police station etc.

There are dangers attendant to Tazing someone.  Any time the natural actions of the human body are artificially altered, there is a danger that the alteration may be permanent or at least long lasting enough to cause permanent injury.  Then, too, there is a danger that the suspect may be injured in the uncontrolled fall.

However, the dangers present in deploying a Taser are far less than the alternatives available to the officer.  Consider the example noted above.  If the officer did not have a Taser, the options available to her would be to shoot the suspect or to strike him with her baton, two courses of action likely to cause death or serious bodily injury.

With this background in mind, let us consider the Michael Brown shooting in Ferguson, MO and the death of Eric Garner in Staten Island, NY.  Where were the Tasers?  Arguably, Officer Darren Wilson did not have time to deploy a Taser once Michael Brown reached for the officer’s gun.  Also, at that point, the officer’s life was in danger and he was, in my opinion, justified in using deadly force.  The grand jury obviously concurred in this analysis.

But, what about the Staten Island case?  Eric Garner, all 400 pounds of him, was no threat to the officers.  However, the officers were entitled to place him under arrest, putting aside for the moment the idiocy of criminalizing the sale of a single cigarette.   It was the perfect situation for a Taser.  The big man does not want to be restrained.  Hit the big guy with the electrons and watch him fall to the ground like a 400 pound sack of Marlboros.  Then, cuff him and call for a police crane to transport him to the station.

Some police departments do not deploy Tasers.  Some officers do not like to use Tasers.  I do not know why Eric Garner was not Tazed.  Had Eric Garner been Tazed, he most likely would still be alive.  Let’s hear it for the Tasers.


Jurors’ Questions to Witnesses: A Bad Idea

Having just vented about the Ferguson, MO pundits and quasi-experts, I would like now to turn to a more esoteric topic.  In the past few decades, there has been what I consider to be an invidious practice creeping into criminal trials: the practice of allowing jurors to ask questions of witnesses.

The way a witness testifies is like this: The witness takes the stand and is sworn.  The witness is asked questions by the proponent of his testimony and is then cross-examined by the adversary.  The proponent is then allowed to ask follow-up questions called re-direct examination.  As far as I can tell, this has been the practice throughout the history of the common law.  It has served the law well.

Failing to heed the precept “if it ain’t broken, don’t fix it”, an increasing number of judges have been permitting jurors to ask questions of the witnesses.  After the attorneys are through asking questions, each juror is allowed to write proposed questions and submit them to the judge for review.  The judge then goes over the proposed juror questions with counsel, who may make objections.  The judge then rules which ones to ask the witness.  Some judges allow the attorneys to then ask additional questions based solely on the answers given to the jurors’ questions.

This is a bad idea.  Let me repeat: this is a bad idea.  I may be spitting into the wind here, but it is a bad idea  I am going against the tread, swimming against the current as it were, but allowing jurors to ask questions of the witnesses is a bad idea.  Did I say bad idea?  I meant to say very bad idea.  Get the picture.

It is the function of the jury to decide the facts of the case in an impartial manner.  It is the function of the lawyers to elicit evidence such that the jury will find the facts in favor of the lawyers’ clients.  The two functions must not merge.  Inviting the jurors to participate in the lawyers’ function blurs the important line between the lawyers’ role and the jury’s role.  Permitting jurors to ask questions of the witness invites the jurors to become proponents of the evidence and not judges of the evidence.

Furthermore, a juror has a personal stake in the answer to the question he or she propounds.  If the juror likes or dislikes the answer the witness gives or the manner in which the witness gives the answer, that answer may be given undue weight, not because of the substance of the answer, but because the manner in which it was given offended or flattered the juror who asked the question.

Finally, a juror whose question was not asked because it was objectionable, might take offense or feel disrespected.  That juror might find it more difficult to act in a collegial manner with his fellow jurors in assessing the evidence and in reaching a verdict.

Bad idea.  Repeat.  Bad idea.  One more time, bad idea.

Ferguson: Awaiting the Grand Jury Return

With apologies for not having blogged in a while (I was busy with other matters, including dealing with other attorneys who were absolute jackasses), I would like to give my comments on the current legal situation in Ferguson, MO.  As is my usual practice, I will debunk what most of the pundits are saying about the situation.

The present discourse seems to be dominated by two types of individuals.  First, there are employees from media outlets attempting to keep themselves and their employers relevant.  CNN has finally given up on finding the missing Malaysia Air plane, although I think they are still looking for Amelia Earhart, and MSNBC needs someone, anyone, to look at their offerings as something more than comic relief.  The second type of punditry consists of attorneys attempting, largely unsuccessfully, to disguise their ignorance of the law.

As is my practice, we commence our discussion by understanding the institutions involved and rationales underlying those institutions.  In this case, we begin by looking at what a grand jury is and what is its role in the legal process.  The grand jury is designed to act as a buffer between the government and its citizens.  Rather than give the government unfettered discretion to charge an individual, a grand jury is supposed to sift through the evidence and determine if there is enough evidence to formerly bring an individual to the expense and burden of a trial.  The standard by which grand juries judge the sufficiency of the evidence is probable cause.  Grand juries usually consist of 23 members, although the grand jury investigating the shooting in Ferguson is comprised of only 12 citizens.  When presented with a case, a grand jury can do one of two things.  It can return and indictment, often referred to as a true bill, or it can decline to indict which is often referred to as an ignoramus.  Really.  Ignoramus.  Like a lot of the people who are opining about the situation.  A simple majority is sufficient to indict.

Because the grand jury is investigative in nature, its proceedings are necessarily secret.  After all, it would not do to have the target of the grand jury discover that he or she is being investigated, allowing him or her to flee or tamper with evidence.

Neither the defendant nor his attorney have a right to appear before the grand jury.  The grand jury hears only the evidence that the prosecutor wishes to present.  However, occasionally, the target of the grand jury may be invited to testify.  In such instances, the target may bring his counsel with him, but the lawyer must wait outside of the grand jury room while his client testifies.

A grand jury has subpoena power.  It may subpoena witnesses, documents and other forms of evidence.  However, witnesses may exercise their Fifth Amendment right against self-incrimination before a grand jury.

Critics of what has been termed the Ferguson Grand Jury have largely demonstrated a lack of understanding of what the legal system as a whole and the grand jury in particular are all about.   Let us start with the basics.  The grand jury investigating the fatal shooting of Michael Brown is not the Ferguson Grand Jury.  The grand jury is sitting in Clayton, Mo, the county seat for St. Louis County, the county in which Ferguson is situate.  In the United States, state and local courts are generally organized by county.  The courts generally hold sessions, including grand jury sessions, in the county seat, although many counties have satellite courts in places other than the seat of county government.

Apparently, in Missouri, a grand jury is optional with the prosecutor.  This has led some to criticize prosecutor Robert McCulloch for not bypassing the grand jury entirely.  The critics show a lack of understanding of the purpose of a grand jury.  The purpose of a grand jury is to deprive prosecutors of unfettered discretion to charge an individual.

Even when a Grand Jury is not required, the prosecution should always utilize the grand jury process.  Remember, a grand jury stands between the government who wants to prosecute and the citizenry.  As such, the grand jury, like a trial or petit jury, is an instrument of democracy.  Why should the citizens be deprived of making such an important decision effecting the well-being of their community?  Those who want to bypass the grand jury are advocating taking power out of the hands of the people and giving it to the prosecution, a very dictatorial and undemocratic position.  Is this something that we, as freedom loving citizens, really want?

The prosecution is also being criticized for putting the case before the grand jury without advocating for an indictment.  Merely presenting evidence to the grand jury without suggesting that an indictment should be returned or not is sometimes referred to as putting the case in “straight”.  While it is true that prosecutors usually press for an indictment, that is not what they should be doing.  If the process is to have any meaning, every case should be presented to the grand jury “straight”.  Those who want the prosecutor to argue for an indictment do not understand the important role a grand jury plays in the criminal process.

In a similar vein, some criticize the prosecution for presenting evidence favorable to Officer Wilson.  While, again, it is usually the case that prosecutors only present evidence favoring an indictment, this is not what they should be doing.  Evidence favorable to the accused, if available, should be presented to every grand jury.

However, the absolute dumbest comment I have heard is what I heard attorney for the Brown family, Benjamin Crump, say on national television.  Mr. Crump complained that there was no need for the grand jury because there was probable cause to indict.  He knows the evidence.  He has determined that probable cause exists.  There is no need for a grand jury, because Crump has spoken.

I am certain that there are more than two things wrong with this complaint.  My readers are invited to supplement.  Here are my two nominations.  First, it is the grand jury, not Mr. Crump, who determine whether probable cause has been established.  The grand jury has heard the evidence, under oath, a state of affairs that Mr. Crump cannot duplicate.  Second, Crump’s contention proves too much.  Under his reasoning, you would never need a grand jury.  The very thing that the grand jury is supposed to determine (probable cause) would preclude its use.

The commentaries continue to give me good material.

Benjamin Franklin and the Selection of Judges

There are many methods of selecting judges in the United States.  In federal courts, the President nominates and the Senate gives a thumbs up or thumbs down.  Various states have various methods from election to appointment to some combination of appointment and election.  No state has chosen as a method for selecting judges the method proposed by Benjamin Franklin at the Constitutional Convention.

Franklin was an aged, but revered figure at the convention.  He was due the utmost respect, but his ideas did not always meet with approval.  Such was his idea for selection of judges for the nation’s judiciary.

Franklin termed his plan the “Scotch” plan.  Notes from the Convention leave unclear whether the name of the plan refers to a geographic location or the type of beverage to be consumed while making the selection.  Under this method, all of the lawyers would assemble and select the ablest among themselves to be judge.  The remaining lawyers would then snatch the new judge’s cases.  The lawyers’ self interest would assure that the best person got the job.

Of course, this presupposes that the best lawyer has the best cases.  Even in the 18th Century, this was a doubtful proposition.

Franklin’s proposal was met with respectful silence.