Ferguson and the Prosecutor’s Approach to the Grand Jury

Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below.

Grand jury basics. A grand jury is a group of citizens that decides whether there is probable cause to indict individuals suspected of crimes. Sometimes a grand jury considers cases where no charges have been brought yet – where the indictment would be the first charging document in the case — and sometimes a grand jury considers cases where preliminary charges have already been brought by officers or prosecutors, subject to later review by the grand jury.

Grand juries normally consider cases when prosecutors submit the cases to them. (In some states, like North Carolina, grand juries occasionally identify cases on their own using a procedure called a presentment.) Historically, the grand jury served “a vital function in providing for a body of citizens that acts as a check on prosecutorial power.” United States v. Cotton, 535 U.S. 625 (2002). In other words, if a prosecutor were overzealous, the grand jury could rein the prosecutor in by refusing to issue indictments.

In recent years, commentators have noted that most grand juries issue indictments in virtually every case they consider. (The Charlotte Observer ran this story about the rarity of North Carolina grand juries declining to return indictments.) This may reflect the fact that prosecutors are careful to pursue only cases in which probable cause is present. But it may also be due in part to the fact that grand juries normally hear only the evidence and witnesses selected by the prosecutor. There is no constitutional requirement that exculpatory evidence be presented to the grand jury, United States v. Williams, 504 U.S. 36 (1992), and it often isn’t.

Grand jury details. The details of grand jury operation vary somewhat from jurisdiction to jurisdiction. In North Carolina, grand juries have between 12 and 18 members, and 12 votes are required to indict. G.S. 15A-621. Federal grand juries have between 16 and 23 members, with 12 votes required to indict. Fed. R. Crim. P. 6. In Missouri, grand juries are comprised of 12 members, with 9 votes required to indict.

Jurisdictions also vary regarding the role of the prosecutor in grand jury proceedings. In North Carolina, prosecutors submit cases to the grand jury along with draft indictments but are not actually present in the grand jury room. G.S. 15A-623. Prosecutors are present and examine witnesses during federal grand jury proceedings. Fed. R. Crim. P. 6. The Huffington Post reports here that prosecutors are also present and elicit evidence in Missouri grand jury proceedings.

How this case was presented. The Ferguson case was not presented to the grand jury in the usual brief manner. Instead, the grand jury met for 70 hours over 25 days in order to hear from virtually every available witness, and the prosecutor declined to recommend any particular charge or charges. The Washington Post notes here that this approach is atypical, but is sometimes used in high-profile, controversial cases. A negative spin on the tactic is that prosecutors use it to avoid making tough charging decisions in difficult cases, instead shifting the responsibility to the grand jury. A positive spin on it is that prosecutors use it to ensure that any charging decision in such a case is based on an unusually deep evaluation of the evidence and reflects the voice and values of the community. The approach is used at times in North Carolina as well as in Missouri, and I imagine it is used elsewhere as well.

Criticism of the Missouri prosecutor. Some have criticized the Missouri prosecutor for choosing to present all the evidence to the grand jury, rather than only evidence supporting probable cause to indict Officer Wilson. An example of such criticism by a law professor and a defense attorney is here.

Why that criticism isn’t fair. It’s true that the prosecutor’s approach to this case differs from the rubber-stamp approach used in most criminal cases. But this case isn’t like most criminal cases. First, in many cases, the evidence of guilt is overwhelming and the charging decision is relatively easy. That’s not the case here, where there apparently was substantial evidence supporting Officer Wilson’s claim that he acted in self-defense. As the New York Times reported:

The fact that at least nine members of the 12-member panel could not agree to indict the officer indicates that they accepted the narrative of self-defense put forth by Officer Wilson in his voluntary, four hours of testimony before the grand jury. Mr. McCulloch, in his summary of the months of testimony, said it was supported by the most reliable eyewitness accounts — from African-Americans in the vicinity of the shooting — as well as physical evidence and the consistent results of three autopsies.

It strikes me as entirely appropriate to handle doubtful cases more carefully than clear ones, and it makes no sense to suggest that every time a prosecutor can cherry-pick a set of witnesses that would support probable cause, he or she must or should do so even if on balance the evidence is more consistent with innocence.

Second, this case attracted far more community interest and controversy than most criminal cases do. Given the sensitivity of the case, it seems reasonable to use a process that maximizes community involvement at an early stage. The prosecutor has also made the information considered by the grand jury available to the public in the interest of transparency. That’s not usual, either, but also seems appropriate given the level of public interest.

Third, some of the criticism of the prosecutor seems to me to be based on a faulty assumption. The assumption is that the prosecutor gave Officer Wilson more favorable treatment than other suspects receive. The assumption is based on the fact that most suspects don’t get a full evidence review at the grand jury stage. But it seems to me equally plausible to argue that the prosecutor gave Officer Wilson less favorable treatment than other suspects receive, by requiring him to go through the grand jury process even though the prosecutor may well have believed that the evidence supported self-defense and the Officer Wilson likely committed no crime. In other words, one could argue that the prosecutor should not have submitted the case to the grand jury at all, and instead should simply have announced that the evidence did not support criminal charges. Where one could reasonably argue both that a prosecutor treated a suspect favorably and that the prosecutor treated the suspect unfavorably, perhaps the prosecutor simply treated the suspect fairly.

Concluding thoughts. None of the foregoing should be construed as an opinion about the substance of the grand jury’s decision. I’m not familiar enough with the evidence to have a view, though I am generally disinclined to second-guess the work of a group of citizens who spent so long looking carefully at the case.

Finally, note that the case isn’t over yet. As far as state criminal charges go, it probably is: although it is generally legally permissible to resubmit a case to a second grand jury, the Missouri prosecutor appears to have no intention of doing so. However, federal charges are still possible, as is a civil lawsuit.

28 thoughts on “Ferguson and the Prosecutor’s Approach to the Grand Jury”

  1. Everyone who thinks the Prosecutor would have proceeded in exactly the same fashion if Brown were the shooter and Wilson the victim, please raise your hand.

  2. The criticism would be unfair if self-defense evidence was presented to grand juries in other homicide cases (not involving an officer shooting). This is not the case. Self-defense homicides almost always go to trial. It is exceptionally difficult even in a preliminary examination/probable cause hearing to get a court to find no probable cause based on an affirmative defense in cases with a dead body. I would even say most judges who preside over such hearings would agree that the near universal mindset is that affirmative defenses are up to the jurors (in a trial) and do not negate probable cause that a crime may have been committed.

    What I see is that the burden of probable cause was greatly increased in this case – fictitiously demonstrating to the public that probable cause is about doing the right thing and that if someone isn’t guilty then they shouldn’t be charged. That is a far cry from everyday practice in our justice system in most if not all jurisdictions.

    I am not saying that the grand jury did anything wrong, just that the procedural differences were not justified and greatly increased the distrust and appearance of special treatment that is the heart of equal justice for all. Plainly speaking, handling the case exactly as other homicides with some evidence of self-defense and some evidence negating self-defense are handled would have met the standard of equal justice.

    Also, it makes no difference whatsoever that “in many cases the evidence of guilt is overwhelming.” Each case is it’s own separate entity and that is why the procedural polices should not be manipulated on a case by case basis.

    • Thanks for this thoughtful response. A few points in reply.

      One, I disagree that claims of self-defense almost always are left for trial. Just a few days ago, officers and prosecutors in Winston-Salem announced, after reviewing the evidence, that no charges would be brought against a man who killed another in self-defense: http://www.wxii12.com/news/homicide-investigated-in-winstonsalem/29644422. Here’s another example from Wake County a few months ago: http://www.wbtw.com/story/26020055/wwii-veteran-shoots-and-kills-nc-neighbor-in-self-defense-officials-say-he-will-not-be-charged. If the evidence in support of self-defense is sufficiently strong, it makes sense both as a matter of justice and as a matter of conservation of resources to consider it long before a case reaches the point of a trial.

      Two, you suggested that “the burden of probable cause was greatly increased in this case,” but you don’t say who you believe did the increasing, or how he or she accomplished that. I haven’t seen any suggestion that the grand jury was instructed in anything but a standard way.

      Three, I disagree that it doesn’t matter whether a case is close or overwhelming. There are minimum procedural protections that apply to all cases, overwhelming or not. However, I hope that all actors in the court system pay extra attention to cases where the evidence is ambiguous, as such cases are the likeliest breeding ground for mistakes.

      Thanks, again, for your substantive response.

      • Your disagreements are certainly reasonable.

        Regarding #1 – that most self-defense homicides go to trial, I guess I should just have said that in my personal experience the prosecutor generally sees their role as taking the position that self-dee is a “defense” – to be put on by us, the defense, not them. Yes, this is of course after the defendant has already been charged with a homicide, which I realize doesn’t really mesh with the procedure used in this case.

        I have seen some self-defense trials that are close calls and some that probably should not have been charged (although I know there are those that are closely examined – like the ones you cited from the news) – they are far from the norm in my experience. They are the scariest kinds of trials – even when the self-dee evidence is strong, precisely because an experienced prosecutor is going to be up there arguing to the jury that it’s not justified..that it doesn’t make common sense based on all the evidence taken together…that it was excessive or that it’s not how the reasonable law abiding person would have responded. And, if you win (the jurors see the defense was reasonable), your client walks home. If you lose, you’re likely looking at life or close to it. When the officer is the victim instead of the shooter, you’re looking at death in many states.

        Doesn’t mean they’re always wrong, doesn’t mean they’re always right, but when there is the appearance of the government actors changing their perception of what their role is in the case, the question could fairly be asked: Why? I think that may be the problem a lot of us were having.

        Regarding #2, the raising of the burden of probable cause, that was not a literal or legal comment but just as some of us are saying it went from nearly rubber-stamp to let’s make sure this is absolutely just before charges are even brought. The way the prosecutors treated the disputed self-dee evidence in this case is at least way different than I’ve ever experienced or heard of in non officer-involved cases.

        Along the same lines as Ron Wright’s comment below – that it seemed in this case there was a lot of extra care and consideration given to making sure the GJ heard everything they could get their hands on before there was a charge brought.

        With #3, well, the problem I think is there’s always the question of “overwhelming in whom’s opinion?” The answer is usually going to the filing agency, right? I mean they use the grand jury to ask for indictments for cases they want to prosecute. I don’t disagree that the procedure used in this case would be much, much more fair to potential defendants, but we started out with whether it was fair to criticize the justifications for doing it differently in this case.

        I think some of the criticism has been unfair, but much of it sticks out to experienced trial attorneys as very unusual. The only thing that’s not unusual is that whichever jurisdiction, whichever procedure – whether manipulated for the particular case or left to the usual, at the end of the day police officers are extremely unlikely to be charged whereas the shooter in other cases with disputed self-defense evidence and certainly some excessive evidence, are very likely to be charged and they will have to roll their dice in front of the jurors at trial.

  3. Although I agree that self defense can be determined without charging a person or going to trial, I think part of the issue that folks are having is that there appears to be some evidence that it wasn’t perfect self defense. Having conflicting witness statements isn’t unusual. People still get charged and indicted. I guarantee someone will be indicted next week and there will be conflicts in
    the witness statements. I also don think it’s fair to say that in most cases there is overwhelming evidence of guilt. A lot of times prosecutor has a set of facts and build their narrative from there. Unless there’s video, how can you 100% what happened? Whether you spent anytime with the criminal justice system or not, people know what happened in Ferguson isn’t how things normally play out. Only in certain cases do people go “whoa…slow down…” And on some level…that’s a little unsettling.

  4. I don’t think your essay accounts for years of local context that Mr. McCulloch helped to create. For decades, Mr. McCulloch has failed to offer the sort of leadership that would close the gap between the police department and the community. Now he faces criticism that he built this grand jury to insulate him from the consequences of a choice that he normally makes alone. You say that one could view this as a process that disfavored Officer Wilson. Or you could see this as proper deference to community views on an especially sensitive case.

    So what motives should I attribute to Mr. McCulloch? Is he an grand jury innovator who wanted to demand extra accountability from a police officer and to empower the public? Or did he conceive of his role as defense counsel for the police — pursuing the role this time in a way that gives him more political cover? Stripped of historical context, both possibilities are believable to me. But the history here pushes me firmly in one direction.

    • My point was that the process that was used — comprehensive review by the grand jury without a recommendation by the prosecutor — was a reasonable one for this case. So I don’t think that criticisms focused on the use of that process are correct. (As an aside, the News and Observer has a story up today in which former Wake County DA Colon Willoughby talks about his occasional use of a similar process.)

      As I understand your comment, it is directed not at the choice of process, but rather at how the process was administered. Essentially, you suggest that the comprehensive review wasn’t administered fairly and that Mr. McCulloch could have had his thumb on the scale the whole time. I would need to know a lot more than I do about the details of the grand jury proceedings to form an opinion one way or the other about that.

      • My point about history was not well written. I’m sorry, I’ll try again. I’m not just saying the McCulloch had a thumb on the scales. (I believe that he did, based on what I’ve read of the grand jury documents, but I’m trying to make a different point here.)

        Your essay points to possible legitimate uses of the highly unusual grand jury process that operated in this case. And you point to concrete examples of other prosecutors using the grand jury for these good purposes. And you close by saying that criticisms of McCulloch for his choice of an odd process are “not fair” because he might have intended to achieve these legitimate ends.

        I agree with you that this strange use of the grand jury has happened before, and it can have good effects. But prosecutors also use this device to avoid responsibility for difficult choices. More than one prosecutor has told me that he calls a grand jury to “no bill” a delicate case (for example, obscenity charges against pornography distributors, charges requested by local clergy).

        My point about history is this: McCulloch has a history in St. Louis, decades long. In my view, he has contributed to an appalling law enforcement atmosphere. Prosecutors in most places do a far better job of leadership in this area. So when anybody tries to evaluate his choice of a strange procedural device, with possible legitimate and illegitimate effects, history matters. It tells us what he likely intended in using the device, and it tells us the likely effects of using the device. Given McCulloch’s history, I think it is fair to criticize his use of strange grand jury procedures, even though other prosecutors have used the same procedures for good reasons.

  5. Even in the unlikely event it started out as self-defense, firing multiple gunshots against an unarmed man is almost certainly excessive force. Has the basic law of self-defense changed so much since I was in law school that now it is lawful to use deadly force to defend yourself against someone who is not using deadly (likely to cause death or great bodily injury) force against you?

  6. “That’s not the case here, where there apparently was substantial evidence supporting Officer Wilson’s claim that he acted in self-defense.”

    That is certainly what one might be led to believe based solely on McCulloch’s characterization of the evidence during the press conference. But the important word here is “apparently”. McCulloch’s presentation of the evidence is not itself evidence. Moreover, when asked by a reporter last night what specific evidence there was, beyond Wilson’s own testimony, that established probable cause for Wilson to use deadly force against Brown, McCulloch failed to point to any specific piece of evidence or testimony. If the evidence was so substantial, that should have been rather easy to do, don’t you think?

  7. This whole case is corrupt. The prosecutor should have recused himself for starters due to his personal history with [a black male — editor] having killed his father. The giving the grand jury the “whole picture” is probably the first time in US history where such a thing occurred. The GJ proceeding was designed to produce the effect that happened. The people in the streets although mostly uneducated are well-informed regardless. One of these days they are going to wake up and realize that Obama is not their savior but their enemy. Interestingly Democrats McCaskle and Nixon are one sided in this matter and effectively traitors to those who are looking for justice. When cops can shoot you in the front or shoot you in the back,and almost always get away with it, we are all at risk.

  8. Now that I’ve read some of the grand jury documents, I have one other thought. It appears to me that the prosecutors “advising” the grand jury saw their role as defense counsel for Darren Wilson. Every witness sympathetic to Wilson is handled with cooperative “direct exam” style questions. Every witness more sympathetic to Brown gets very aggressive cross examination. This includes, by the way, pointing out the prior criminal records of some “pro-Brown” witnesses.

    Time after time, these documents record a weird hybrid of a trial and a grand jury, an ex parte trial with only one party represented. The represented party was Officer Wilson, and the prosecutors were his lawyers. This grand jury did exactly what Mr. McCulloch programmed them to do.

    • Ron, if what you say is true (assuming you read through the grand jury documents without the intent to prosecute the prosecutor), then where are we left at the end of the day considering the jury still found that there was not enough evidence for probable cause? Even if all the pro-brown-anti-wilson were right about the grand jury phase, where are we left at the end of the day? Does anyone (that is, do you) honestly think that a unanimous jury would find wilson guilty beyond a reasonable doubt if this grand jury couldn’t even find probable cause? The obvious answer isn’t to say that proper and fair procedure doesn’t matter, but it definitely takes fire away from the argument and common pro-brown-anti-wilson perception that the only reason wilson isn’t destined for the electric chair is because the system is corrupt and racist.

      A different but related issue, what was McCulloch supposed to do? Now, I know I’m asking a lot, but assume that McCulloch is a averagely good and moral person who tries his best to do the best he can at his job and who, like most people, would have been especially conscious of his decisions and careful while under the nation’s microscope. Ok, so what was McCulloch supposed to do if got this case and hears evidence that leads him to believe Wilson was innocent? Under normal conditions, he wouldn’t have even taken it to the grand jury, but now, he’s pressured to at least do something. Should he have recused himself and given it to a state attorney who was intent on making a name for himself (think Nifong)? How is that anymore just than a prosecutor who doesn’t bring a case because he doesn’t believe in its merits?

      The prosecutor has a duty to be a gatekeeper. Just like cops are gatekeepers before them. And just as judges are gatekeepers thereafter.

      Ron, you put a great deal of emphasis on the criminal justice system as a system of rules and procedures. Our criminal justice system isn’t supposed to be the emotionally heated mob that hangs ’em where they find ’em. You know more than anyone that we have these procedures for good reasons. Why should we throw them away just because the national media catches onto a story in which they’ve created the narrative simply to appease the angry mob?

      In my view, like many of these types of cases, people use the story to push and prove their own agenda. We use these events to prove to others and confirm for ourselves that we were right all along. And it couldn’t have come at a better time because if there wasn’t this proof confirming my beliefs then what does that do to the legitimacy of my beliefs? Racism still exists, here’s proof! We turn a series of facts into a story. We give meaning to what is often nothing more than a random series of causal events.

      But this is wrong because, most often, events are just events.

      We just bury ourselves deeper into self-delusion when we try so hard to turn these stories (of which we only have a fraction of an idea of what really happened because they occured thousands of miles away and involved complete strangers) into the perfect vehicles to push our agenda.

      What’s most sad to me about this case is that it takes away from the real issues.

      By hyping this story up, the media created sides for something that shouldn’t have had sides. Celebrities, politicians, and figure-heads chimed in and, in doing so, immediately put their respective detractors on the defensive. When the sharptons turned it into something it wasn’t, it put people in a position of having to unknowingly argue against — not the facts of the case — but someone else’s interpretation of what the factually specific one-of-a-kind event represented. This process morphs itself into an unrecognizable dilemma that gets past even the greatest critical thinkers. When it’s all over and the killer is not punished, one “side” feels like justice was served (and better about themselves because their underlying agenda is reinforced with proof) and the other “side” sees nothing but injustice and a broken legal system that continues to do exactly what they’ve been arguing it does from the start.

      Sorry for the rant, but I will conclude by saying that the genuine issue in this case “should” have been a police officer’s unreasonable response to a situation that created a series of events that ultimately led to the unnecessary death of another human being. Instead of focusing on why Wilson got himself into the position that legally allowed him to kill someone in self defense, we are now focusing on a problem to which there is no satisfactory solution. The polarization caused by the two “sides” now prevents us from using what may have been a perfect opportunity to discuss an actual growing problem in our country. No, I don’t believe racism exists anywhere close to the extent it is professed by the sharptons, but I do believe we have a genuine problem with the increased militarization of our local police forces. This should have been the issue that we all could have agreed upon. Instead, we let our irrational, emotional, and selfish egos fight for an un-winnable position.

      My personal take away from Mike Brown’s death is this: although they are as well intentioned as anyone else, police officers as a whole are getting much more dominant and power-hungry than they should be. For various reasons, our culture promotes this. This is unacceptable. It starts small with petty offenses like speeding 15 mph more than anyone else on the road simply because they’re cops. Then it’s seen in their using their authority to get citizens to shut up or turn off their cameras when they’re embarrassed and self-conscious about what they’re doing. Then it rises to the level of unnecessarily commanding people to do things that they shouldn’t be commanded to do and then using physical force to restrain or arrest those people when they fail to abide by the officer’s command. An officer says jump and you don’t and now you’re resisting. They then grab you too hard make you feel threatened for your safety so you flinch which makes them feel justified in tasering you, or, in the tragic case of Mike Brown, being shot to death.

      I know I haven’t articulated my points well enough or concisely enough to warrant the respect they deserve, so allow this plea to serve as my formal request: please think about what I’ve said. Let’s focus on problems we can solve. Although officers are sometimes 100% justified in using deadly force against evil and wicked individuals, they simply shouldn’t have to be in that position as often as they are. This issue is kind of in parallel with the unnecessary escalation that comes when trying to enforce or enforcing laws outlawing marijuana. It just isn’t right that police officers can so easily unilaterally escalate a situation that started out as nothing more than a simple request.

  9. First, in fairness, my background for this comment is as a former law enforcement officer and veteran NC prosecutor for 10 years. However, for the last 12 years I have worked as criminal defense lawyer, doing solely criminal work. I attended a historically African-American undergrad and law school. I am in complete agreement with Professor Welty’s comments in the article. Fully recognizing the historical context these cases occur in, cognizant of the history of our legal system in failing to fairly and adequately protect the interest and rights of African American citizens, I still believe that we must analyze these events in the actual facts in which they occur, not the greater societal message sought to be addressed by some.

    I have reviewed the publicly available materials from the Grand Jury, and fully believe that if I were given these facts as a prosecutor, seeing the case racially blind as to the parties, I would have never brought any charges against the officer. It is so easy, as so many of those commentators have proven, to sit back in the comfort and safety of their offices and TV studios, and judge/criticize the decision made by an officer, working in the field, forced into a nearly instantaneous decision involving life and death. First, understand that a high percentage of all officer deaths involve the use of their own weapon against them. So, every confrontation with a law enforcement officer is an “Armed Confrontation”, as the officer is typically carrying the cause of their own demise on their belt. Secondly, it would be so nice not to be faced with life and death decisions where you are forced to act on the limited information you have and with only a second to determine the right response; but street officers don’t have that luxury. When someone comes at you in a confrontational manner, and fails to follow your commands to stop, you can only reasonably assume that he or she has decided to take whatever steps necessary to eliminate the risk you present. You don’t have the benefit of the hindsight so many commentators possess, and you don’t have a chance to bounce your thought process and decision making off others to see if you have it right. If you are wrong, your family may well get the visit explaining how you lost your life in the service of your community.

    Truly, 20 + years of this have taught me that eyewitness testimony is the most unreliable evidence in any criminal proceeding. People simply are not observant and do not focus on details. Worse, the mind tends to fill in the blanks in our observations, understandings and recollections; with details we may truly believe, but which are equally inaccurate. It is further clear, that in high profile cases such as this, there is a human tendency to want to be involved in such an event, even when they did not actually witness anything. As is true in many criminal cases, physical and scientific evidence are the only truly “detached and neutral” material available. This evidence often serves to either underpin or bring into doubt the eyewitness testimony and such is the case here.

    Numerous witnesses suggested the victim was shot while either running away or while surrendering to the officer with his hands raised. The physical evidence found at the scene and all three of the autopsies, either prove these statements to be blatant untruths (ie. no injury to the victim’s back) or cast such great doubt on their accuracy as to render these witnesses lacking in any meaningful credibility (i.e. directional blood drops indicating both speed of the young man’s movements and direction toward the officer – consistent with the officer’s testimony).

    Commentators state it must be legally impermissible self defense due to the number of shots fired. However, as is so often the case, these comments, made by those who have never been assaulted by a large, angry and aggressive offender (who just committed a strong arm robbery) reflect an opinion devoid of the context of the real life dangers of police work. When the offender kept coming, as the blood trail suggests, the officer kept firing until the threat was neutralized. If the first shot had eliminated the threat or stopped the offender from advancing, no more shots would have been permissible. But they did not. He kept coming and that decision he made, along with the other bad ones he made that day, sealed his fate.

    Finally, as to the use of the Grand Jury and these procedures; as I said initially, I would have never submitted charges at all, the evidence is sufficiently clear. This young man committed a violent felony assault and strong arm robbery,as the store video proves. His decision placed him at odds with law enforcement. When the officer approached and ordered him out of the center of the road, the young man refused and mouthed off at the officer, again placing himself into direct conflict with a law enforcement officer. When the officer recognized that the young man was the suspect being sought in the BOLO for the store robbery, he re-approached the young man, and it is likely the young man realized he was about to be questioned or arrested for his earlier felonies. His behavior, consistent with the physical evidence, establishes a suspect who was willing to fight, and perhaps worse, to avoid arrest. This young man’s decisions placed him in the position that ultimately resulted in his death, and all manner of blaming others cannot excise him of responsibility for his actions.

    This is a high profile case, and as such, I can understand using the Grand Jury in this manner to create an open and reviewable process, that the public could look into and evaluate. Again, it is easy to criticize the handling of this matter, unburdened by the procedure of law and facts. Grand juries do exist for exactly this function. Many self defense cases never make it to the Grand Jury, as many prosecutors elect to decline prosecution. Here, the prosecutor gave all of the facts to the Grand Jury and left it for them to decide, giving the power to determine the officer’s fate to a representative sample of the community (chosen long before this shooting occurred) rather than keeping it in his hands, as he is given the right to do. If we are going to respect the workings of our system, and give due respect to the hard work of everyday citizens, randomly chosen to serve as Grand Jurors, then stop second guessing their decisions, especially in light of the fact that so many do so with virtually none of the evidence the Grand Jurors examined. As a society, we take great pleasure in criticizing and tearing apart the actions of others. This Grand Jury had no motive, no special interest and “no dog in this fight”. Their hard work deserves respect, absent some actual proof of wrongdoing or impropriety.

  10. Solid analysis. Quick question though. Do you know if Missouri follows the majority/federal rule (United States v. Williams, 504 U.S. 36 (1992)) that prosecutors have no duty to present exculpatory evidence to the grand jury, or the minority rule adopted in several states requiring prosecutors to disclose certain exculpatory evidence?

  11. “… There is no constitutional requirement that exculpatory evidence be presented to the grand jury …” This is different in (continental) Europe (although the next difference is that there is no indictment jury before the “grand” jury proceedings, and in many countries no jury at all. However, this “partisan” approach being allowed but sometimes not taken as you write, this puts yet another spin on the Ferguson case: it may impress on the (black) population an impression that maybe the prosecutor stuck to this “neutral” way of presenting the case because both he and the “culprit” (as these people would see him) are members of the law enforcement community (“… flock together”) whereas if Brown had survived and been indicted then the evidence might have been cherry-picked. That said, I’d rather live under a system where the prosecution must present the exonerating evidence as well in any case (so far as already available).

  12. Mr. Welty, what do you make of the fact that the prosecutors, just prior to Wilson’s testimony, provided the grand jury with Missouri’s superseded and unconstitutional statute on the use of force? How could this NOT have improperly colored the juror’s perception of whether Wilson’s story painted a picture of a justifiable use of force? Even when the prosecutors pointed out their mistake to the jury — at the 11th hour — the transcript shows that they failed to tell the jury exactly what had been wrong with the previous instruction, but said, “there is something in it that’s not correct.” Doesn’t this raise serious questions for you regarding the legitimacy of the process, particularly given the way the prosecutors framed the case for jury as a question of justifiable homicide, when the jury was misled throughout the process regarding the actual law pertaining to perhaps the most central issue in the case?


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