Explain the meaning of the Ferguson grand jury decision?

Factual Questions
21

Two questions come to my mind.

#1 Isn’t it unusual, perhaps absurd, to allow the defendant himself to testify to the grand jury? Isn’t standard procedure to have just the prosecutor talk to the grand jury and not even let the defense attorney into the room? Am I wrong about this?

#2 If it’s true that there’s no double jeopardy prohibition about convening a second grand jury, then wouldn’t releasing all the transcripts to the media be a very strange thing to do? I mean, if you (the prosecutor) planned to have a second grand jury, you’d be shooting yourself in the foot. Or if for some reason you wanted to sabotage any subsequent grand juries, wouldn’t that be a good way to accomplish it?

My thoughts are, to answer the OP, that the meaning of this result is that the prosecutor showed the grand jury both sides of the story, convinced them that they shouldn’t bother prosecuting because the defense had a decent case, and then tried to make sure that nobody else came along behind and said hey let’s try again.

I think this may be a case where the grand jury is supposed to use the “probable cause” standard but they got manipulated into using the “reasonable doubt” standard.

22

No, it’s actually pretty common for a variety of reasons. For one, Federal grand juries, there is a guideline that if a target of a grand jury investigation makes a request to tell their side of the story that “generally the U.S. Attorney should permit this.” It isn’t a constitutional or legal requirement, but is a Federal “guideline” designed to mitigate the appearance of unfairness.

For two, grand juries are independent bodies. They may request the presence of the target of an investigation on their own.

For three, lots of targets are also potential witnesses against other targets. Since many grand juries are not used just to investigate a single case against a single person but a lot of cases, it’s not unheard of for a prosecutor to want a guy in to talk about X person, while the prosecutor is also looking at that guy himself as a target in a related matter also before the grand jury. Typically when someone is served with a grand jury subpoena and has an attorney, the attorney makes it known in writing that the person intends to assert fifth amendment privileges. For this reason it would often only makes sense to subpoena a target if you believe the target can testify about something unrelated to his own crime but that shows probable cause for another criminal matter before the same grand jury.

The way McCulloch used the grand jury is very atypical, but not unheard of, especially in political cases. But however a grand jury is used it’s very rare for a prosecutor to ever seek an indictment a second time if the first one is rejected. An indictment is such a low evidentiary bar that even if you could recast the evidence in a way to insure an indictment, all that evidence that resulted in a no bill before the grand jury will be required to be turned over to the defense at trial and will be used to almost certainly defeat any prosecution. So essentially in the rare case of a no bill it’s almost nonsensical to try again.

Nothing about the evidence being public really inhibits future prosecutions. There aren’t a lot of rules of evidence about what a prosecutor has to show before a grand jury. If another prosecutor called a grand jury on this case and chose to only present evidence indicative of Wilson’s guilt, the grand jury would probably indict. They aren’t allowed to use outside knowledge of the case in their deliberations.

I’d disagree. They were still held to the probable cause standard but given so much evidence that was conflicting for both sides that it made it difficult to even establish evidence to that standard. Typically grand juries hands are held tightly, they are given the bare minimum amount of evidence required to legally show probable cause and they serve mostly as a rubber stamp body.

23

If the movie based on Bugliosi’s book was accurate, Charles Manson was asked to testify at his grand jury, but he took the 5th on every question.

Well, there’s “standard” and there’s “typical”. A friend of mine just served on Federal grand jury, which is two days a month lasting a full year (or perhaps two years). We talked a lot about it, and evidently there’s a pretty standard pattern. First, all the cases were about guns or drugs. The guns cases always started with “where was it manufactured? where is it now? Different state? OK, federal case!” It’s a rather silly interpretation of the Constitution, IMHO, but that’s how the system works. Second, they were definitely the prosecutors’ shows, with the prosecutor having wide latitude over what to present and how to present it. But at least the prosecutor had to have something to show, helping to avoid misuse of the courts for harassment.

But as I said, “typical” doesn’t necessarily mean “standard”.

24

According to this, grand juries are “rooted in the common and civil law, extending back to Athens, pre–Norman England, and the Assize of Clarendon promulgated by Henry II. The right seems to have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York. Included from the first in Madison’s introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition.”

Your contention that it is more fitting within our legal traditions to skip a grand jury and go right to trial is entirely at odds with the facts.

25

These are both good posts that I wish to endorse and build upon.

The United States has a constitutionally mandated presumption of innocence, which makes it criminal justice system somewhat different than elsewhere in the western world. The criminal prosecutors must submit evidence to judge/jury demonstrating the guilt of the defendant; if there is not enough evidence, the defendant walks.

There is also the requirement to not perjure oneself in court, to knowingly deceive the court by telling a lie. Defense attorneys can be disbarred if they allow their client to to give testimony the attorney knows to be false. Thus defendants plead “guilty” or “not guilty”, both of which can be truthful if there is or is not sufficient evidence of guilt respectfully. (Pleading actual innocence when one is guilty can have civil consequences for the defendant and/or his attorneys.) However, the defendant can be spared from even making a plea if there is no probable cause.

The Grand Jury is a first line commonsense probable cause check on the system before a defendant is placed in jeopardy of life or freedom. If twelve or so ordinary citizens, presented with all the evidence with little to no rebuttal cannot agree that someone might have committed a crime, then no indictment is returned. Even though the system is meant to presume innocence, even being placed before the court is psychologically prejudicing; placing someone before the court with only shaky evidence unjustly exposes the defendant to criminal fines, jail time, or worse.

26

No, it’s not a perversion. The criminal justice system is built on a series of steps, and to pass each step, the state must meet an increased burden of proof/review. The burden on the prosecutor is higher than the burden on the police, for good reason.

The police themselves have to meet a series of increasing proof. They can’t just stop anyone walking down the street. They have to have, at the very least, a reasonable suspicion that something has happened, and that a person may be a witness. That is a very low standard, appropriate for the very beginning stages of an investigation. But, that type of suspicion only justifies a very short detention, to start the investigation. Reasonable suspicion doesn’t justify the laying of a criminal charge.

To lay a charge, the police have to meet a much higher standard than reasonable suspicion: that is what probable cause means. They have to have probable cause to believe an offence has been committed by a particular individual, based on their investigation and their understanding of the law.

But once charges are laid, it goes to the prosecutor, and the prosecutors have a different, higher, standard. Prosecutors are not the lawyers for the police, and do not proceed to trial simply because the police have laid a charge. They are independent officials in the criminal trial process, and they must conduct their own assessment of the case, using a higher standard than the probable cause required for a charge to be laid.

In my jurisdiction in Canada, it’s usually stated as the prosecutor must be satisfied that “there is a reasonable likelihood of conviction.”
(See Federal Prosecuctions Policy: “Proceeding with Charges.”) That assessment is based on a more detailed review of the law than is possible for a police officer, and also on the prosecutor’s professional review of the evidence available, in light of the trial process. The witness statements and other evidence may indeed support probable cause, which is the standard the police must meet. But, the prosecutor may conclude that there are difficulties with the case as presented, which make a conviction unlikely.

[ul][li] If there are serious conflicts in the witness statements, for instance, which is certainly the case in the Ferguson case, that may lead the prosecutor to conclude that a conviction is unlikely.[/li][li]Or, it may be that some of the evidence is inadmissible, due to constitutional or statutory restrictions.[/li][li]There may be serious credibilty problems with some of the witnesses.[/li][li]Witnesses may no longer be available to testify, due to illness, death, or having moved.[/li][/ul]

If a prosecutor concludes that there is no reasonable likelihood of a conviction, they don’t just have discretion to stay the charges: they have a duty to stay the charge. If the prosecutors, based on their professional skills and experience, conclude that there is no reasonable likelihood of conviction, then they must stay the charges. The state at this stage must meet a higher standard than probable cause, and the prosecutor has a duty to ensure that higher standard is met. If not, the charges must be stayed.

And note that the standard continues to increase as the matter proceeds. At the preliminary inquiry stage, held before a judge, the prosecutor must lead all the evidence and have the judge make an independent assessment whether there is sufficient cause, in the judge’s view, for the matter to go to trial. The judge makes that assessment based on submissions from both the prosecutor and the defence.

Then, finally, at trial itself, the prosecutor must prove the case beyond a reasonable doubt. That is a higher standard still, higher than both “probable cause” and “reasonable likelihood of conviction.”

This series of increasing burdens on the state is intentional and a crucial part of the criminal justice system. It is designed to protect the accused from the state. At each step, the state’s onus increases, to weed out the cases that do not have merit and to ensure that only the guilty are convicted.

As others have commented, trials are not fact-finding processes. They are not to be used to “clear the air” or to demonstrate that the state has properly investigated a case. Their purpose is for the state to prove that an accused has committed a crime and should be convicted, possibly incarcerated.

If at any stage in the process, the state cannot meet the increasing burden, then it must stop the investigation, the charges, or the trial. Anything less would be a perversion of justice.

27

[QUOTE=runningdude]
The United States has a constitutionally mandated presumption of innocence, which makes it criminal justice system somewhat different than elsewhere in the western world. The criminal prosecutors must submit evidence to judge/jury demonstrating the guilt of the defendant; if there is not enough evidence, the defendant walks.
[/QUOTE]

[[sigh]]

Before making statements like that, it would be helpful to, you know, actually look at what the constitutional requirements are in other western countries? If you did, you would find that the US is not unique and its guarantee of the presumption of innocence is not different from other western countries.

For instance, you could just take a boo at the Constitution of your neighbour to the north? The Canadian Charter of Rights and Freedoms provides:

[QUOTE=Some non-American law-making dudes]
11. Any person charged with an offence has the right
…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
[/quote]

Or you could take a look at the European Convention on Human Rights, which applies to all 47 members of the Council of Europe.

Article 6 of the Convention applies to criminal procedures, and oh, guess what?

[QUOTE=some more non-American law-making dudes]

Art. 6, para. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
[/QUOTE]

So, before making broad claims of American exceptionalism, you should take into account that at least 48 other western countries guarantee the presumption of innocence as a basic constitutional principle.

28

Perhaps I could have added a qualifier “historically somewhat different”, but the presumption of innocence was a direct rejection of the European practice, and retains a broader meaning here than elsewhere.

29

Really? Odd, then, that the drafters didn’t think to put the presumption of innocence into the Bill of Rights. It’s not mentioned there at all. (Unlike the French Declaration of the Rights of Man of 1789,which predates the Bill of Rights by two years. The Declaration expressly states: “As all persons are held innocent until they shall have been declared guilty…”)

Odd as well that if it was such a fundamental rejection of European practice, that it was not considered by the Supreme Court until 1895, in the case of Coffin v. United States. And in that case, Justice White for the Court relied heavily on Roman civil law, Catholic canon law, and English common law for the basis for the presumption of innocence.

Odd as well that legal historians have pointed out that the presumption of innocence is deeply rooted in European civil law, and developed concurrently with the principle in the English common law, which is the main source for the presumption, historically, in the United States. See for instance: Innocent Until Proven Guilty: The Origins of a Legal Maxim. The author of that article states:

He adds that the earliest statement he can find of the principle is a commentary by a French cardinal, writing about the principles of the ius gentium, or natural law, in the 14th century:

30

This brilliantly written and highly insightful SDStaff article may be of some interest.

31

:slight_smile:

32

Absolutely correct.

Err… somewhat correct as well, but worth pointing out that in New York, the law requires that good cause be shown and a judge’s permission obtained before a second grand jury can be presented with a bill of particulars for which a prior grand jury refused to return an indictment. Also worth mentioning that unless the accused consents, New York requires a grand jury to indict before a felony case may be tried. I suppose the prosecutor could proceed on a misdemeanor charge, though.

Yes, you’re wrong: dramatically so.

In New York, the target of a grand jury must by law be given the opportunity to testify. The failure to provide that opportunity is grounds to quash any resulting indictment. (And, indeed, that quash triggers CPL § 210.20(4), the law I mentioned above requiring permission from a judge to re-present the charges to a new grand jury.)

Not really, no. Ultimately the grand jury testimony would be discoverable by the defense. In what specific way do you believe the future prosecution is prejudiced?

The instructions given to the grand jury are public. Which instructions do you believe were flawed?

33

The prosecutor can certainly refile with a new grand jury, but the odds are it won’t fly with them either. It is a rare case indeed where a second GJ indicts after the first one didn’t.

34

You’re mixing up two different issues. It is indeed unusual for the defendant to testify before the grand jury in NY, but it is not a matter of the prosecutor allowing the testimony or not. The defendant is always permitted to testify - but he or she must waive immunity to do so. There is often little benefit in the defendant testifying , so it is uncommon.

( And in NY, IIRC the defense attorney is permitted in the room while the defendant is testifying , but may not participate)