Ferguson’s Prosecutor Problems

by on Nov.26, 2014, under politics, society

I was asked what I think should have been different about the grand jury in Ferguson. You know, where a cop fired a gun at least 10 times and killed someone, witnesses disagree on what happened, and then the prosecutor who presented before the grand jury used the opportunity of announcing the verdict to whine about the media for 20 minutes.

The grand jury process might have worked with a different/independent prosecutor. Charging a police officer is already a problematic thing given how closely prosecutors work with police on a daily basis. Some data points on this specific situation:

– Robert McCulloch is already known to be an unenthusiastic presenter to a Grand Jury when police officers are involved:

– Immediately after the shooting, there were people demanding an independent prosecutor:

– McCulloch is also President of a charity that supports Police Officers and Firefighters’ families. That’s not a bad thing, but it is another clear indicator that he might not be objective:

– Right after the killing, a video of Michael Brown stealing a pack of cigars was leaked to the media from the prosecutor’s office. Because shoplifting $3 worth of merchandise justifies getting gunned down in the street – and because they were interested in helping the police.

– Read the Grand Jury testimony. Wilson is walked directly to why he felt his life was in danger. He isn’t interrogated – he essentially appeared in front of the Grand Jury with the prosecutor interested in establishing that he was in grave danger, and that his actions were justified. He is allowed to go on and on about how intimidated he was by someone the same height as him, and dismiss any other options before he drew his gun, but not asked about emptying his clip to gun down a fleeing suspect:

– Here’s one analysis of testimony:

– Here’s some other analysis of the grand jury testimony:

– The context of all of this is very racially divided city with a bad history. The rejection of any call for independent oversight happened in a town already convinced the local justice system was out to get them – and they weren’t wrong:

– This is not a new problem. I think that the protestors have hope that this is the time people will pay attention. It’s not hard to find examples of police violence. The statistics I could find reported some number between 400 and 1100 police killings a year. I have no doubt that most of them are justified by circumstance – but even if 3 out of 4 are justified, that’s almost a person a day wrongfully killed by police. Do you believe that the justice system that they work with every day takes a hard, uncompromised look at the circumstances?

When the people in charge are so arrogant that they don’t even attempt to avoid conflicts of interest and abuses of power, they are very difficult to trust. If you still did for some reason, anyways.

My friend Curtis also had some thoughts:

“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.”
– Justice Antonin Scalia – 1992 – US vs Williams

“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. 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.”
– Prosecution instructions to jury members in the Daren Wilson Grand Jury Session

There is no “presumption of innocence” in a Grand Jury. There is no probable cause determination in a Grand Jury. The prosecution from their opening remarks to their summary statements were actively trying to block this indictment. I’m pretty sure the trial (if it had happened) would have just been more of the same.

All the white people lecturing about the proper way to protest might want to consider that when you are repeatedly ignored, you are likely to raise your voice.

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