Cases and controversies: Not your typical grand jury investigation
Today’s news coverage features a vigorous debate over last night’s announcement that a grand jury in Missouri declined to indict police officer Darren Wilson for his role in the death of Michael Brown, an unarmed African-American teenager. Some believe that Wilson clearly should have been indicted for an unnecessary and unjustified killing; others counter that the grand jury process allowed the development of facts which show that Wilson acted well within the rules governing law enforcement and self-defense. In this column – which we hope to make a recurring feature on the blog – I hope to situate this legal news in the context of relevant Supreme Court decisions (here, decisions about how grand juries work), and in doing so help to advance a better understanding of both the news and the law.
An eye-catching graphic based on data from Ben Cassleman at FiveThirtyEight.com shows that, at least in federal cases, what happened in this case is extraordinarily rare. Grand juries almost always bring the indictments that prosecutors request. But which way does this cut?
Maybe it goes to show that this case really was the rare one in which the evidence just didn’t support the charges: As Cassleman notes, one “benign” reason why the rare cases that do not result in an indictment often involve police shootings is that prosecutors feel compelled in such cases to bring charges they otherwise wouldn’t bring. (Andrew Sullivan just published a reader’s email to the same effect.) News accounts make clear that there was a lot of conflicting eyewitness testimony; given all the exculpatory evidence, many who are hardly inclined to defend the Ferguson police departmenthave said they can “see why the grand jury would have reason to doubt whether Officer Wilson committed a crime.”
On the other hand, Cassleman says, his graphic might support a theory of bias – either against the minority victim or in favor of the police. It might be that the jurors were just less inclined to believe that Brown was shot for no reason because he is black, or more inclined to believe Wilson because he is white or wears blue. And it might be that prosecutors just “tend to present a less compelling case against officers, whether consciously or unconsciously,” because they (after all) are law enforcement officers too, who consistently work with the police.
What’s missing from this discussion – and the rest of the coverage I’ve seen – is that this grand jury result may have been different from almost any other because the process was unlike almost any other. And that’s because of a contentious Supreme Court decision from two decades ago.
The question in United States v. Williams was whether it is prosecutorial misconduct, requiring the dismissal of an indictment, for the prosecutor to withhold from the grand jury “substantial exculpatory evidence” in his possession that might lead the grand jury to reject the indictment. The Supreme Court said no. Justice Scalia, joined by four other Justices, held that the Constitution does not require exculpatory evidence to be disclosed, even when it is directly contrary to the prosecutor’s theory of guilt. That is partly because the grand jury’s role is not to determine guilt or innocence, but rather to decide whether there is enough evidence of a crime that a conviction is possible. The grand jury itself can say “we’ve heard enough,” and so the Court declined to impose on the prosecutor a burden to present it with all of the evidence.
Justice Stevens dissented, in an opinion that was joined by the other three Justices. For him, the idea of the prosecutor withholding known exculpatory evidence was inconsistent with the grand jury’s historic role in preventing “hasty, malicious and oppressive persecution” and its “function in our society of standing between the accuser and the accused.” Notably, however, even Justice Stevens’s dissent admitted 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.” He suggested that it would be enough to require prosecutors to present evidence known to them that “directly negates the guilt of a subject of the investigation” – a requirement taken from the (unenforceable) United States Attorneys’ Manual.
[Special note for law nerds: The absence of a federal constitutional rule requiring disclosure does not mean that there can be no laws or policies requiring some. Those there may be, but I am not aware of them, and we would have very little idea of how they were implemented in practice given the near-total secrecy of grand jury proceedings. Also, Missouri could have a different requirement under state law, but that appears not to be true.]
What does this mean? It means that when a prosecutor really wants an indictment, you would not expect the grand jury process to look anything like what happened in Darren Wilson’s case. The prosecutor would have no obligation to put forward the conflicting eyewitness testimony, or introduce pictures of Officer Wilson’s injuries – although grand jury members could ask for them if they somehow knew they existed. Instead, the prosecutor could put forward only the first few witnesses corroborating his own theory, along with the evidence that Wilson fired ten shots from a substantial distance away. Eventually, all the exculpatory evidence would have to be shared with the defense before trial, under a line of cases that started over fifty years ago with Brady v. Maryland. But once charges are on the table, the prosecutor has enormous leverage in bargaining for the kind of plea he wants – a case like Wilson’s, for example, might even include the threat of the death penalty.
And indeed there has been a lot of coverage of how prosecutors use their charging authority (which goes more or less unchecked by the grand jury) to bring hugely punitive indictments that allow them to simply bargain for the sentence they want, without ever having to prove guilt beyond a reasonable doubt. One of the critics has actually been Justice Scalia himself.
This is a complicated takeaway for all sides. If you are the kind of person who thinks the police get too much deference for dubious uses of force, while other criminal defendants are too often treated as guilty until proven innocent, you certainly might raise an eyebrow at the likely truth that the prosecutor here gave Wilson a lot more process than the rules require – and than the average defendant seems to get. (In fact, reviewing the end of the last volume of the grand jury proceedings, the prosecutor’s discussion appears almost impartial to a fault – in the literal sense.) But one should think hard about whether that means the rules should change, and everyone should receive more and better legal process, or whether the prosecution instead should have thrown the book at Wilson just because it could. At a minimum, though, we should not get the wrong idea about the grand jury process we have: It protected Wilson because the prosecutor was willing to let it; nothing requires any similar caution in other cases. So maybe this is a case about prosecutorial or institutional bias in which Wilson was treated far too well, or – maybe – it is a case about reviving a much more robust role for the grand jury, so that others get the same legal process on display this week.
http://www.scotusblog.com/2014/11/cases-and-controversies-not-your-typical-grand-jury-investigation/
Today’s news coverage features a vigorous debate over last night’s announcement that a grand jury in Missouri declined to indict police officer Darren Wilson for his role in the death of Michael Brown, an unarmed African-American teenager. Some believe that Wilson clearly should have been indicted for an unnecessary and unjustified killing; others counter that the grand jury process allowed the development of facts which show that Wilson acted well within the rules governing law enforcement and self-defense. In this column – which we hope to make a recurring feature on the blog – I hope to situate this legal news in the context of relevant Supreme Court decisions (here, decisions about how grand juries work), and in doing so help to advance a better understanding of both the news and the law.
An eye-catching graphic based on data from Ben Cassleman at FiveThirtyEight.com shows that, at least in federal cases, what happened in this case is extraordinarily rare. Grand juries almost always bring the indictments that prosecutors request. But which way does this cut?
Maybe it goes to show that this case really was the rare one in which the evidence just didn’t support the charges: As Cassleman notes, one “benign” reason why the rare cases that do not result in an indictment often involve police shootings is that prosecutors feel compelled in such cases to bring charges they otherwise wouldn’t bring. (Andrew Sullivan just published a reader’s email to the same effect.) News accounts make clear that there was a lot of conflicting eyewitness testimony; given all the exculpatory evidence, many who are hardly inclined to defend the Ferguson police departmenthave said they can “see why the grand jury would have reason to doubt whether Officer Wilson committed a crime.”
On the other hand, Cassleman says, his graphic might support a theory of bias – either against the minority victim or in favor of the police. It might be that the jurors were just less inclined to believe that Brown was shot for no reason because he is black, or more inclined to believe Wilson because he is white or wears blue. And it might be that prosecutors just “tend to present a less compelling case against officers, whether consciously or unconsciously,” because they (after all) are law enforcement officers too, who consistently work with the police.
What’s missing from this discussion – and the rest of the coverage I’ve seen – is that this grand jury result may have been different from almost any other because the process was unlike almost any other. And that’s because of a contentious Supreme Court decision from two decades ago.
The question in United States v. Williams was whether it is prosecutorial misconduct, requiring the dismissal of an indictment, for the prosecutor to withhold from the grand jury “substantial exculpatory evidence” in his possession that might lead the grand jury to reject the indictment. The Supreme Court said no. Justice Scalia, joined by four other Justices, held that the Constitution does not require exculpatory evidence to be disclosed, even when it is directly contrary to the prosecutor’s theory of guilt. That is partly because the grand jury’s role is not to determine guilt or innocence, but rather to decide whether there is enough evidence of a crime that a conviction is possible. The grand jury itself can say “we’ve heard enough,” and so the Court declined to impose on the prosecutor a burden to present it with all of the evidence.
Justice Stevens dissented, in an opinion that was joined by the other three Justices. For him, the idea of the prosecutor withholding known exculpatory evidence was inconsistent with the grand jury’s historic role in preventing “hasty, malicious and oppressive persecution” and its “function in our society of standing between the accuser and the accused.” Notably, however, even Justice Stevens’s dissent admitted 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.” He suggested that it would be enough to require prosecutors to present evidence known to them that “directly negates the guilt of a subject of the investigation” – a requirement taken from the (unenforceable) United States Attorneys’ Manual.
[Special note for law nerds: The absence of a federal constitutional rule requiring disclosure does not mean that there can be no laws or policies requiring some. Those there may be, but I am not aware of them, and we would have very little idea of how they were implemented in practice given the near-total secrecy of grand jury proceedings. Also, Missouri could have a different requirement under state law, but that appears not to be true.]
What does this mean? It means that when a prosecutor really wants an indictment, you would not expect the grand jury process to look anything like what happened in Darren Wilson’s case. The prosecutor would have no obligation to put forward the conflicting eyewitness testimony, or introduce pictures of Officer Wilson’s injuries – although grand jury members could ask for them if they somehow knew they existed. Instead, the prosecutor could put forward only the first few witnesses corroborating his own theory, along with the evidence that Wilson fired ten shots from a substantial distance away. Eventually, all the exculpatory evidence would have to be shared with the defense before trial, under a line of cases that started over fifty years ago with Brady v. Maryland. But once charges are on the table, the prosecutor has enormous leverage in bargaining for the kind of plea he wants – a case like Wilson’s, for example, might even include the threat of the death penalty.
And indeed there has been a lot of coverage of how prosecutors use their charging authority (which goes more or less unchecked by the grand jury) to bring hugely punitive indictments that allow them to simply bargain for the sentence they want, without ever having to prove guilt beyond a reasonable doubt. One of the critics has actually been Justice Scalia himself.
This is a complicated takeaway for all sides. If you are the kind of person who thinks the police get too much deference for dubious uses of force, while other criminal defendants are too often treated as guilty until proven innocent, you certainly might raise an eyebrow at the likely truth that the prosecutor here gave Wilson a lot more process than the rules require – and than the average defendant seems to get. (In fact, reviewing the end of the last volume of the grand jury proceedings, the prosecutor’s discussion appears almost impartial to a fault – in the literal sense.) But one should think hard about whether that means the rules should change, and everyone should receive more and better legal process, or whether the prosecution instead should have thrown the book at Wilson just because it could. At a minimum, though, we should not get the wrong idea about the grand jury process we have: It protected Wilson because the prosecutor was willing to let it; nothing requires any similar caution in other cases. So maybe this is a case about prosecutorial or institutional bias in which Wilson was treated far too well, or – maybe – it is a case about reviving a much more robust role for the grand jury, so that others get the same legal process on display this week.
http://www.scotusblog.com/2014/11/cases-and-controversies-not-your-typical-grand-jury-investigation/
This Is Why We're Mad About the Shooting of Mike Brown
18-year-old Michael Brown was gunned down on Saturday by a Ferguson police officer in St. Louis. Witnesses say Brown had his hands in the air as he was shot from 35 feet away.
As a black person in America, it's getting exhausting to still have to explain, in the year 2014, your right to exist in this country. To explain that you are a human being whose value sits no lower than anyone else's. To explain our basic humanity. And perhaps worst of all, to explain exactly why we are outraged.
We shouldn't have to explain why it's not acceptable for unarmed teenagers to be gunned down by the police.
We shouldn't have to explain why even though Mike Brown's life didn't matter to you or a Ferguson police officer, it mattered to someone.
We shouldn't have to explain that the clothes we wear don't protect us against, or make us more susceptible to, violence. Four little girls were bombed in their church dresses and Martin Luther King Jr. was gunned down in a suit and tie.
We shouldn't have to explain that the right to due process—that which was not afforded to Mike Brown—is in the Constitution of the United States of America. In fact, it's in there twice.
We shouldn't have to explain why the correct response to these tragedies is not, "but what about black on black crime?" 84 percent of white people killed every year are killed by other whitesand no one ever attempts to undermine any of the senseless violence they suffer.
We shouldn't have to explain that the punishment for even the most heinous crimes in our country is not a public execution without a trial.
We shouldn't have to explain why we don't trust cops when a number of eyewitnesses tell a consistent and vastly different story than that of the police officer who murdered Mike Brown.
We shouldn't have to explain why we fight back when we are attacked.
We shouldn't have to explain why we deserve the same protections and rights afforded to every other citizen of America.
But maybe you can help with some other questions I have, because I am at a loss.
Can you explain why Mike Brown was gunned down in the street while James Eagan Holmes, who killed twelve people and injured 70 others after opening fire in a movie theater, was escorted into a squad car? Can you explain why Dzhokhar Tsarnaev is still alive but Mike Brown isn't? What about Jared Lee Loughner?
Can you explain why Mike Brown's body was left uncovered in the middle of the street for hours for any reason other than to send a message to his community?
Can you explain why a black man is killed by the police every 28 hours in this country?
Can you explain why media outlets reporting on his death used the photo of Mike Brown on the left instead of the right?
Can you explain why the Ferguson Police Department disproportionally searches black people while the contraband hit rate for white people is higher?
Can you explain the complete disregard for black life that resulted in the deaths of John Crawford, Eric Garner, Trayvon Martin, Tarika Wilson, Malcolm Ferguson, Renisha McBride,Amadou Diallo, Yvette Smith, Oscar Grant, Sean Bell, Kathryn Johnston and Rekia Boyd?
Can you explain why the police rolled up to a candlelight vigil in SWAT gear?
Better yet, can you explain any of that to Mike Brown's mother?
http://jezebel.com/this-is-why-were-mad-about-the-shooting-of-mike-brown-1619522935?utm_campaign=socialflow_jezebel_facebook&utm_source=jezebel_facebook&utm_medium=socialflow
Protests Flare After Ferguson Police Officer Is Not Indicted
CLAYTON, Mo. — A St. Louis County grand jury has brought no criminal charges against Darren Wilson, a white police officer who fatally shot Michael Brown, an unarmed African-American teenager, more than three months ago in nearby Ferguson.
The decision by the grand jury of nine whites and three blacks was announced Monday night by the St. Louis County prosecutor, Robert P. McCulloch, at a news conference packed with reporters from around the world. The killing, on a residential street in Ferguson, set off weeks of civil unrest — and a national debate — fueled by protesters’ outrage over what they called a pattern of police brutality against young black men. Mr. McCulloch said Officer Wilson had faced charges ranging from first-degree murder to involuntary manslaughter.
Word of the decision set off a new wave of anger among hundreds who had gathered outside the Ferguson Police Department. Police officers in riot gear stood in a line as demonstrators chanted and threw signs and other objects toward them as the news spread. “The system failed us again,” one woman said. In downtown Ferguson, the sound of breaking glass could be heard as crowds ran through the streets.
As the night went on, the situation grew more intense and chaotic in several locations around the region. Bottles and rocks were thrown at officers, and windows of businesses were smashed. Several police cars were burned; buildings, including a Walgreens, a meat market and a storage facility, were on fire, and looting was reported in several businesses. Gunshots could be heard along the streets of Ferguson, and law enforcement authorities deployed smoke and gas to control the crowds. In St. Louis, protesters swarmed Interstate 44 and blocked all traffic near the neighborhood where another man was shot by police this fall.
Before midnight, St. Louis County police officers reported heavy automatic gunfire in the area where some of the largest protests were taking place. Flights to Lambert-St. Louis International Airport were not permitted to land late Monday as a safety precaution, officials said.
http://www.nytimes.com/2014/11/25/us/ferguson-darren-wilson-shooting-michael-brown-grand-jury.html?module=Search&mabReward=relbias%3Ar%2C%7B%222%22%3A%22RI%3A18%22%7D
Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury
BY JUDD LEGUM POSTED ON
On Monday, Prosecutor Bob McCulloch announced that a grand jury had decided not to indict Darren Wilson, the officer who killed Michael Brown. But that decision was the result of a process that turned the purpose of a grand jury on its head.
Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.
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.
This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.
In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson.
Compare Justice Scalia’s description of the role of the grand jury to what the prosecutors told the Ferguson grand jury before they started their deliberations:
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.
As Justice Scalia explained the evidence to support these “complete defenses,” including Wilson’s testimony, was only included by McCulloch by ignoring how grand juries historically work.
There were several eyewitness accounts that strongly suggested Wilson did not act in self-defense. McCulloch could have, and his critics say should have, presented that evidence to the grand jury and likely returned an indictment in days, not months. It’s a low bar, which is why virtually all grand juries return indictments.
But McCulloch chose a different path.
http://thinkprogress.org/justice/2014/11/26/3597322/justice-scalia-explains-what-was-wrong-with-the-ferguson-grand-jury/
Politicians urge protestors to be peaceful after Ferguson decision
Politicians responded to the news Monday night that a grand jury haddecided not to indict Ferguson police officer Darren Wilson in the shooting death of Michael Brown by urging protestors to voice their concerns peacefully and avoid violence.
Home state Sen. Roy Blunt (R-Mo.) responded shortly after the decision was announced. "We must balance the rights of Americans to exercise their free speech alongside the rights of people to live peacefully and safely in their communities," he said in a statement. "I join Michael Brown’s family in urging protestors to do so peacefully."
Missouri's other senator, Democrat Claire McCaskill, issued a statement saying, "There will be many people who are disappointed in today’s decision, even though it is a result of a deliberate legal process that’s being independently checked by Attorney General Eric Holder and the U.S. Justice Department. While we await the conclusion of that independent investigation—and continue working together for solutions to systemic issues highlighted by this tragedy -- I’m praying that the good people of St. Louis and local law enforcement will remain peaceful and respectful of one another."
Rep. John Lewis (D-Ga.), a civil rights icon, urged protestors to resist any desire to lash out violently.
I know this hard. I know this is difficult. Do not succumb to the temptations of violence. There is a more powerful way.#FergusonDecision — John Lewis (@repjohnlewis) November 25, 2014
Rep. Emanuel Cleaver (D-Mo.) took to Twitter to encourage followers to make their voices heard in the electoral process:
If they do not hear our cries in the street, let them hear us in the voting booth. — Rep. Emanuel Cleaver (@repcleaver) November 25, 2014
Sen. Tim Kaine (D-Va.) released a statement saying, “In light of the grand jury decision not to prosecute officer Darren Wilson for the shooting of Michael Brown, I ask authorities to respect the right of all people to express themselves during this understandably emotional time, as well as urge the people of Ferguson and the nation to respond peacefully and constructively. Going forward, it’s critically important that we do more as a nation to address the tense relationship between law enforcement and local communities that was prevalent well before this tragedy, particularly in communities of color."
Rep. Jan Schakowsky (D-Ill.) was among the politicians who quickly voiced their disappointment with the grand jury's decision.
"An indictment in this case would have prompted a trial in which all aspects of Michael Brown’s death would be carefully weighed and considered, and justice could have been served," she said in a statement.
Rep. Keith Ellison (D-Minn.) concurred:
Incredibly disappointed in Michael Brown no bill, but not surprised. Worried for my sons.
— Rep. Keith Ellison (@keithellison) November 25, 2014
Rep. Elijah Cummings (D-Md.) said in a statement that he was "disappointed" in the grand jury's decision not to indict Wilson. But he added, "We must respect that decision. The Department of Justice will continue its review of this incident and the entire Ferguson Police Department, and I am confident that investigation will bring us closer to the justice that Brown’s family and the entire Ferguson community deserve."
The liberal group Democracy For America called on the Obama administration to pursue federal charges against Wilson.
"If St. Louis County won't hold Police Officer Darren Wilson accountable for killing Michael Brown, it's time for President Barack Obama and Attorney General Eric Holder to ensure justice is done by issuing federal charges against Officer Wilson," Democracy For America spokesman Neil Sroka said in a statement.
Others later chimed in with calls for peace:
Prayers for peace in Ferguson.
— Joaquin Castro (@JoaquinCastrotx) November 25, 2014
Joining w/ Brown family calling for peace in aftermath of the decision "Lets not just make noise lets make a difference" #FergusonDecision
— Senator Ben Cardin (@SenatorCardin) November 25, 2014
Let’s handle this through the strategy of non-violence:http://t.co/8Btb9qm3AC #FergusonDecision
— Rep. Hank Johnson (@RepHankJohnson) November 25, 2014
http://www.washingtonpost.com/blogs/post-politics/wp/2014/11/24/politicians-urge-protestors-to-be-peaceful-after-ferguson-decision/?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost 
