User:Cwobeel/sandbox/grandjury

Grand jury instructions

The instructions to the grand jury given by prosecutors before they started the deliberations stated "[…]you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence. [sic]"

Earlier in the hearing, the prosecution presented a 1979 Missouri statute that allowed officers to use deadly force "to effect the arrest or prevent the escape from custody [of a person]". However, in the 1985 case of Tennessee v Garner, the U.S. Supreme Court ruled: "Under the Fourth Amendment of the U.S. Constitution, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Missouri Attorney General Chris Koster, acknowledged that the grand jury was given information based on the state law before being informed that deadly force cannot be used merely to prevent the escape of an unarmed suspect.

Georgetown adjunct law professor and legal analyst Kenneth Jost said that "[a]sking the grand jurors three months later to ignore the mistake was surely a fruitless attempt to unring the bell." Chad Flanders, a Saint Louis University law professor, said that Missouri State Law was at odds with the Supreme Court ruling, but believed that state law still is in effect. William Freivogel of the St. Louis Public Radio, indicated that the Garner ruling was a constitutional standard for a civil lawsuit, and that Missouri had not changed the law that was found to be unconstitutional. In the case that Wilson was indicted by the grand jury and later convicted, the conviction could be challenged on the basis that Missouri law which permits the use of deadly force.

Announcement of no bill

On November 24 at 10:59 P.M., Prosecutor McCulloch reported in a 20-minute press conference that the grand jury reached a decision in the case and elected "not to indict Wilson."

The Washington Post opinion writer Dana Milbank observed that the Brown jury's refusal to indict Wilson marked the fifth time in 23 years that McCulloch had presented evidence to a grand jury in prosecuting an officer-involved shooting, and that none of these cases had gone to trial.

Following the grand jury announcement, protests, some of them violent, broke out in Ferguson and other cities across the United States. Several Ferguson businesses were looted and fires set by protesters. Protests erupted in 170 cities across the US including, St Louis, Philadelphia, Seattle, Albuquerque, New York, Cleveland, Los Angeles, Oakland, Minneapolis, Atlanta, Portland, Chicago and Boston.

Protesters react the day following the grand jury decision in Union Square, Manhattan in New York City.

In London on November 26, hundreds of protesters demonstrated peacefully outside the US Embassy. A small rally of roughly 100 people was held in solidarity in Boise, Idaho at the Anne Frank Human Rights Memorial.

Release of documents

On November 25, McCulloch released a large number of documents, including testimony from the proceedings, selected photographs, investigative reports, video and audio recordings, and interview transcripts considered as evidence, following his promise to release the grand jury proceeding's documents.

McCulloch's office acknowledged that it kept some records secret at the request of the FBI, due to the ongoing civil rights investigation. Only 24 of the 64 witness testimonies were made public. More than half of the witness interviews that were released were conducted by FBI agents or federal prosecutors. Interviews conducted by county officials were not released. Seven video clips of Dorian Johnson's media interviews, along with a transcrit of his testimony to the grand jury, were released. Video of the two-hour interview by FBI and county police were withheld.

Reception

Commentary by legal analysts

Eric Citron wrote on SCOTUSblog that the grand jury investigation was atypical. Citron argued that, based on the precedent set in United States v. Williams, prosecutors can withhold "substantial exculpatory evidence" in order to obtain an indictment, as the role of the grand jury is not to determine guilt, but rather to decide whether there is enough evidence of a crime; exculpatory evidence can be presented at trial. Citron presented the dissent from Justice Stevens, who said that the prosecutor need not "ferret out and present all evidence that could be used at trial to create a reasonable doubt as to defendant's guilt." Citron then asserted that when a prosecutor wants an indictment, a grand jury process like what happened in Wilson's case would not be expected.

Ronald S. Sullivan Jr., director of Harvard Law School's Criminal Justice Institute, said that McCulloch avoided responsibility for the result, calling the case an unusual use of a grand jury's resources. Jeffrey Toobin, a legal analyst for CNN and The New Yorker, criticized McCulloch for implementing "a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else".James A. Cohen, a law professor at Fordham University, said that prosecutors normally present evidence to help grand jurors understand it. He elaborated that McCulloch presented evidence so that the grand jury would return no true bill. Cohen further stated that there were disparities between Wilson's account and his resulting injuries, and questioned Wilson's motivations for pursuing Brown.

William Fitzpatrick, president-elect of the National District Attorneys Association, stated that it was not strange for prosecutors in police-involved cases to provide all available evidence and not ask for a specific charge and defended McCulloch's inclusion of evidence.

Ben Trachtenberg, a University of Missouri law professor, said that it is unusual for so much evidence to be presented to a grand jury, as only probable cause need be proven to obtain an indictment and stated that the grand jury saw evidence in favor of Wilson's testimony rather than in favor of securing an indictment.

Dan Abrams, chief legal affairs anchor for ABC News, defended McCulloch, stating that while trial rules of evidence did not apply, McCulloch's lack of specific charges did not make the case wrong. He wrote that the evidence itself likely persuaded the grand jury's decision. He further said that McCulloch was under no obligation to present the case to a grand jury. However, he did criticize the way McCulloch presented the grand jury decision announcement, saying McCulloch "seemed personally invested" in the decision.

Ronald Kuby, an experienced defense attorney, told the New York Daily News that there were discrepancies in Wilson's testimony that were not questioned by the prosecution: Wilson described Brown as verbally aggressive but gave no indication as to his own aggression on his part and said Brown handed off stolen cigarillos to Johnson in the middle of the struggle through the car window. He also criticized the prosecutors for not questioning any details of Wilson's version of events or statements provided by witnesses that supported it, while scrutinizing contradictory witness statements.

Eugene O'Donnell, a former policeman and lecturer at the John Jay College of Criminal Justice, said that the handling of the shooting and its aftermath was clumsy and "symptomatic of larger problems of race, class and law enforcement in the country […] Police departments are frequently not good at their core function" and that "Ferguson is not an outlier".

Jay Sterling Silver, a professor at the St. Thomas University School of Law in Miami, described McCulloch's announcement of the grand jury decision as "rambling" and "Orwellian", and criticized him for diverting attention from the failure to indict Wilson, for blaming the media for disrupting the grand jury process, and for shifting responsibility to the community to reduce police killings.

Commentary by media sources

Following the grand jury result, there was criticism surrounding aspects over the handling, result and aspects of the grand jury process.

The Washington Post stated that there were unorthodox forensic practices shown in the published testimony of Wilson and other law enforcement officials. It said Wilson washed blood off of his hands without photographing them first. It also said that Wilson submitted his gun to evidence by himself, and that initial interviews of Wilson were conducted with other personnel present and were not taped. It described Wilson's face injuries after the shooting as photographed by a local detective at the Fraternal Order of Police building, instead of at Ferguson Police headquarters. An investigator with the St. Louis County Medical Examiner's office testified that he decided not to take measurements at the crime scene nor did he photograph the scene, instead relying on photographs taken by the St. Louis County Police Department. The Washington Post also said there was an inconsistency between witness accounts, stating that the investigators who interviewed Wilson immediately after the shooting stated that one shot was fired inside the police patrol car, though Wilson testified that 2 shots were fired inside the cruiser.

The New York Times described prosecutors' questioning of Wilson as "gentle" and said it contrasted with the sharp challenges to witnesses whose accounts seemed to contradict Wilson's, and reported that this had led some to question whether the process was as objective as McCulloch had claimed. The Times reported that prosecutors asked witness after witness if Brown appeared to be reaching for a weapon when confronting Wilson, though few of them said that, Furthermore, some contradictions in testimony by Wilson and other law-enforcement officers were left unchallenged by prosecutors.

Roger Parloff from Fortune wrote that while when a prosecutor believes that the accused is innocent, the prosecutor does not seek an indictment, but that was not a politically palatable option for McCulloch; taking that course of action would have been "taking all the heat himself, while leaving him no opportunity to explain the basis of his decision to the world", and that in these circumstances, his approach was very reasonable.

On December 16, Michael Smerconish of the The Philadelphia Inquirer wrote that McCulloch was no-win position and gave the case to the grand jury despite a lack of evidence to prove probable cause because because the public would not accept a unilateral decision by McCulloch. Smerconish said the grand jury proceedings were atypical because they presented all the evidence and included testimony by the subject of the investigation, Darren Wilson. Smerconish said conflicting witness statements which could support indictments were not backed up by the forensic evidence. Cassell says Caselman's claim is a logical fallacy in which a pool cased, screened for probable cause, are compared to instances where grand juries are operating without the assurance that any criminal conduct is present. Cassel said "The difference in the outcome with the Michael Brown investigative grand jury from a routine federal prosecution is hardly surprising."

Ben Casselman wrote that though not all information was available, the grand jury result was atypical. Casselman cited a Bureau of Justice Statistics report that 11 of 162,000 federal grand jury cases in 2010 declined to return an indictment and said that police officers are rarely indicted by grand juries. Casselman lists the possible reasons as juror bias, prosecutorial bias, and also the possibility that prosecution brought a weak case to the grand jury in response to public pressure.

Harry Bruinius of The Christian Science Monitor cites the 2010 Bureau of Justice Statistics report and other studies which highlight that "US police officers kill approximately 1,000 citizens per year in the line of duty [and on] average, four officers are indicted for causing gun-related deaths". Bruinius attributes the low indictments to numerous factors including the deeply held social compact stemming from the pressures of the job to the jurors' bias to trust the word of the officers. Bruinius says that critics of the system point out the close working relationship between officers and prosecutors in the legal system and have pushed for independent investigations in these cases.

Paul Cassell of the Washington Times examined the process of the case and assessed it against public criticism. Cassell stated that the grand jury did bit deviated from the normal process, except for the prosecutor not making any particular recommendation for charges. Cassell said objections that the grand jury took too long were silent on the parallel federal investigation being run. The argument that too much evidence was presented in to the grand jury, compromising the process, was described by Cassell as an attempt to manufacture a weakness.