Thursday, November 27, 2014

Does a grand jury mean justice for Michael Brown — or is it a delaying tactic?

Joe Raedle

On Tuesday, August 19, The Wall Street Journal reported that St. Louis County prosecuting attorney Robert McCulloch could begin presenting evidence about the shooting of Michael Brown to a grand jury as early as August 20. It's a possible step towards prosecuting Ferguson, Missouri, police officer Darren Wilson for Brown's death.

The article noted that "the prosecutor expects his office will need numerous sessions to provide jurors with findings from the Aug. 9 death of Mr. Brown and will try to have the panel start meeting several times a week."

Alex Little, a former federal prosecutor who spent six years trying violent crimes, including homicides, has criticized that strategy, and said that this news raises concerns about the local prosecutor's commitment to pursuing the case.

Little's concerns echo other criticisms of McCulloch, whose independence and dedication to pursuing the case have repeatedly been called into question since he became involved. More than 27,000 people have signed an online petition demanding that McCulloch be removed from the case. The petition cites his decision not to bring charges in a previous shooting, in which police officers killed two unarmed black men, as evidence that his continued involvement in the Brown case "will only sow further distrust and discord." On August 15, St. Louis County Executive Charlie Dooley announced that he would lead an effort to remove the McCulloch from the case.

McCulloch has promised a thorough investigation into Michael Brown's death, telling the Wall Street Journal that "absolutely everything will be presented to the grand jury. Every scrap of paper that we have. Every photograph that was taken."

In an email exchange, Little explained to me how the process of starting a prosecution usually works, why he believes the grand jury might be a delaying tactic, and why he worries that the county prosecutor may have "abdicated his role as an advocate for justice." Here's what he had to say.

On waiting for the grand jury's decision on criminal charges:

"Prosecutors have the responsibility to make tough decisions about cases. Here, the District Attorney should review the evidence, consult with investigators, and decide whether he believes there is probable cause to charge Wilson with a crime.

"Once he has made that decision, he can — and should — take steps to implement it, either by securing Wilson's arrest or announcing that no charges will be filed.

"The idea that the District Attorney has to wait for the grand jury to spend weeks combing through the evidence is flat wrong, and if his office is promoting that explanation for its delay in acting, then it's being deliberately misleading."

On the prosecutor's "abdication" of his proper role in the grand jury process:

"Grand jurors vote on indictments that are presented to them by the District Attorney's Office. They can rely on hearsay, such as summaries of witness statements and other reports, and almost always do. The practical effect of allowing the grand jury to rely on hearsay is to speed the process along. And there is no obligation for prosecutors to present possible defenses to the grand jury. The only question the grand jury must answer is whether there is probable cause to believe a crime has occurred. That's a very low standard, and it's almost always met when the District Attorney seeks charges.

"So when a District Attorney says, in effect, 'we'll present the evidence and let the grand jury decide,"'that's malarkey. If he takes that approach, then he's already decided to abdicate his role in the process as an advocate for justice. At that point, there's no longer a prosecutor in the room guiding the grand jurors, and — more importantly — no state official acting on behalf of the victim, Michael Brown.

"Then, when you add to the mix that minorities are notoriously underrepresented on grand juries, you have the potential for nullification — of a grand jury declining to bring charges even when there is sufficient probable cause. That's the real danger to this approach."

On how McCulloch could be sending a message to grand jurors:

"Unfortunately, on too many occasions, prosecutors take this sort of hands-off approach exactly because they don't want charges to be filed, but they're afraid of taking the heat for making that decision themselves. By not taking a firm position in the grand jury proceedings and advocating for an indictment, the District Attorney is sending a message to the grand jurors that is different from what they've heard in every other case.

"And that message is clear: This time, don't return an indictment."

On the county prosecutor's statement that "absolutely everything will be presented to the grand jury":

"That isn't standard, and it isn't productive, unless the goal is to delay resolution of the case. If the District Attorney has made a decision about how to move forward, which is his obligation, he only needs to present to the grand jury a summary of the evidence that supports a charge. To be sure, he should also tell the grand jury about evidence that is exculpatory or tends to suggest there isn't a basis for an indictment, but there's certainly no obligation to give the grand jury 'every scrap of paper.' The only thing that will achieve is delay."

On the assertion that it's the grand jury's job to "sort out" whether Brown was involved in a convenience store robbery and if that played a part in the shooting:

"This description of what the grand jury is allegedly deciding is a good example of what's wrong with the District Attorney's cavalier approach. It's quite possible that, as a legal matter, Brown's potential involvement in a prior robbery is irrelevant to whether Wilson was justified in shooting him. But, if the District Attorney isn't willing to make a decision on that question, and take a stand that Wilson's actions were improper, the result is that the grand jury may be exposed to irrelevant evidence that shouldn't affect its vote on charges."

This exchange has been edited for length and clarity.

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