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Ferguson: The Evils Of The Grand Jury System

Above photo: A police officer secures an area around the Buzz Westfall Justice Center in Clayton, Missouri, on November 24, 2014 where a grand jury has been considering whether to indict a white Ferguson police officer who shot and killed an 18-year-old black teenager, Michael Brown. (AFP Photo/Jewel Samad)

The Actions Of The Prosecutors In Ferguson Demonstrate The Farce Of The Grand Jury Investigating The Killing Of Michael Brown

Note: In addition to the problems with the grand jury system, there were specific problems with the Ferguson grand jury considering the death of Michael Brown. One that deserves special attention is pointed out by Lawrence O’Donnell of MSNBC in this video. The prosecutor gave the jurors an unconstitutional statute that described when it is lawful for an officer to shoot to kill an individual. The unconstitutional statute said that fleeing from a police officer was sufficient justification for killing someone. That was found to be unconstitutional yet the statute was given to the jurors just before Officer Wilson testified. At the end of the proceedings, months later, the prosecutor gave the jurors a revised statute without clearly stating what was wrong with the previous hand-out. This is one example of many of how the prosecutors did all they could to ensure that Officer Wilson would not be indicted.

Typically a grand jury only considers one side of the evidence, evidence that shows a crime was committed and who committed it. They do not hear testimony about defenses to those charges; that side of the story is told during the trial. The only job for the grand jury is to find whether there was probable cause that Officer Wilson committed a crime. Probably cause is one of the lowest standards in criminal law. Justice Scalia explained the role of the grand jury in US v. Williams in 1992:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Indeed, in instructing the grand jury, as Think Progress points out, the prosecutors turned the grand jury on its head as a way to prevent an indictment telling them:And 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.”

These were just some of the problems with the grand jury in Ferguson. For more see:

Everything the Darren Wilson grand jury got wrong: The lies, errors and mistruths that let Michael Brown’s killer off the hook, Salon.

Ferguson Grand Jury Evidence Reveals Mistakes, Holes In Investigation, Huffington Post.

The Ferguson Grand Jury’s Openness Was a Farce, Slate.

Last August when this process began I urged the family of Michael Brown to immediately pursue a civil action against Officer Wilson and not to wait for the grand jury or the Department of Justice investigation. I knew that the grand jury would be a farce because of the conflicts of interest of prosecutor Robert McCulloch and had doubts about the Justice Department investigation because of Eric Holder’s history in dealing with police abuse.  A civil suit was an opportunity for the family to get out its story about what happened, to begin to gather and report on evidence so that a different narrative would be in the public mind and the manipulated grand jury would not be the only source of information. While that did not occur, I am please to hear that the family will be pursuing its own legal process. That has the potential of resulting in some semblance of justice.


Another young black man is dead. Another cop killer remains employed to protect and serve the community he has destroyed.

Over the last 17 years I have represented dozens and dozens of clients who were subpoenaed to testify as witnesses at State and Federal Grand Juries regarding government investigations. A grand jury is a secret tribunal where a citizen is forced to answer questions by a prosecutor, often against their will. They are not allowed to have an attorney in the grand jury room to advise them while the questioning takes place. There is no Judge in the grand jury room to oversee the fairness or legitimacy of the proceedings. The prosecutor alone determines what evidence will be provided to the grand jurors, and that alone forms the basis of their deliberations and their determination regarding whether a felony indictment will issue. The prosecutor becomes the grand jurors’ friend: he controls their bathroom breaks, meals, and whether they can return to their work, families, and lives. The prosecutor, a politically elected position, works very closely with police every day and generally exhibits bias toward police as a result of this familiar relationship. The prosecutor holds enormous power over the outcome of a grand jury proceeding.

As a lawyer for a subpoenaed witness, the primary concern is whether our client may incriminate itself by providing testimony to the grand jury. Because the grand jury is this secret process, the answer to this question is almost always yes, there is a possibility that this person could be compelled to testify and give information that might lead to criminal charges against that person. In these cases, the witness is advised that they must assert their Fifth Amendment right to remain silent so there is no chance they will incriminate themselves of a crime. The only way that the prosecutor can overcome the Fifth Amendment right of a person is to impose immunity from any potential prosecution upon the subpoenaed person. If immunity is thrust upon the witness, their Fifth Amendment right is taken away from them and they are forced to testify. But, by providing immunity, the State acknowledges that they are no longer allowed to prosecute the witness for any crime related to the testimony sought.

It is with this background and understanding that I have been very suspicious about the recent grand jury proceedings regarding Darren Wilson, the police officer who murdered 18-year-old Michael Brown in Ferguson, Missouri. If a person was being investigated for murder, would they (in their right mind) voluntarily waive their Fifth Amendment rights and testify to a grand jury without immunity or some other type of agreement with the State that would assure the suspect officer that their testimony would not be used to prosecute them for one of the most serious felony crimes that exists in this country? If such a deal was not struck in the secrecy of the grand jury process, one would expect that the powerful police union or Wilson’s own lawyers would have asserted his Fifth Amendment right. Because the prosecutor totally controls the questions asked and evidence provided to the grand jury, it was not surprising that as always, the State guaranteed the result they wanted—the police officer would get away with murder again.

Sure, the State felt compelled to hold a grand jury investigation given the public outrage and attention this police murder garnered around the world. And sure, inviting Darren Wilson to give a speech to the grand jury proclaiming his innocence and victimization gave some semblance that the State was undertaking a “real” investigation into the murder. Lauding the service of the grand jurors is a nice distraction as well, but of course it is not the jurors’ fault that the grand jury system is broken. If the jurors are only allowed to touch the trunk and tail in total darkness, it might be hard to see the elephant in the room.

And so, another cop killing never even sees the light of a court room, but instead lurks in the secret darkness of the biased grand jury room.

This scenario has played out too many times in the United States. Marginalized human (whether black, mentally ill, poor, etc.) is shot and killed by a law enforcement officer sworn to uphold the law and protect community safety. The Community reacts with horror, fear and anger at the murder of a victim they know or can relate to. The State provides some window dressing as if they were truly interested in whether this person—one of the few that has the lawful power to kill people under extreme circumstances—acted in conformance with the law. Despite the growing number of cop killings that occur in this country, it is suspect that the State’s conclusion is overwhelming in favor of exonerating the actions of the police officer and affirming the right of the officer to punish a person with death. The community responds in outrage. Protests and direct action have become the only way people can vent the rage and resentment against a broken system of injustice. This public outrage then becomes further justification for increased State repression upon these communities—militarized police, National Guard troops, and the jailing of community leaders. The community often becomes torn and divided between those who cannot remain contrite in the face of such injustice, those who remain obedient to the tenants of Ghandian civil disobedience, and those whose privilege allows them to simply bury their heads in the sand.

Another young black man is dead. Another cop killer remains employed to protect and serve the community he has destroyed. A broken system is perpetuated without discussion about what might replace it. Instead of just replaying this same devastating tragedy, perhaps ‘we the people’ should be coming up with a societal solution that could earn the respect of the people.

Author: Lauren C. Regan is Executive Director and Staff Attorney for the Civil Liberties Defense Center in Eugene, OR.

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