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.

One thought on “Ferguson: Awaiting the Grand Jury Return

  1. Manuel

    The grand jurors did not hear a prosecutor recommend a charge and present evidence supporting it. Instead, they were offered a range of possible charges, from murder to involuntary manslaughter. In this case, Officer Wilson did testify, as the question before jurors was whether he had reason to fear for his life.
    In short, the grand jury’s inquiry proceeded very much like a trial but in secret, as grand jury proceedings always are. That sat poorly with Benjamin Crump representing Brown’s family. Civil actions to come. Stay tuned.

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