Wednesday, December 3, 2014

Judge Wendell Griffen on Ferguson and What a Grand Jury Is and Is Not

My friend Judge Wendell Griffen on what a grand jury is and isn't (the essay is in Wendell's Facebook feed, and has also been published at the website of the Samuel DeWitt Proctor Conference):

Let's debunk the "conflicting testimony" comments that have been made by Prosecutor McCullough and in various media. Trials always involve conflicting proof and contentions. If a defense attorney isn't able to dispute something about the evidence a prosecutor presents the defense attorney will attempt to negotiate the best outcome for an accused person short of trial. Criminal trials routinely involve disputed evidence, competing narratives, and challenged assertions. 
Grand jury proceedings, on the other hand, are not intended to determine guilt, but to justify charging someone with committing a crime. The reason to submit a case to a grand jury is to get an indictment. If the prosecutor doesn't think the facts surrounding a case will support charging someone he or she shouldn't waste the time and energies of citizens who serve on a grand jury by requiring them to consider it. 
The proverbial saying that a grand jury will indict a ham sandwich is based on the reality that a prosecutor controls what happens in grand jury proceedings. Witnesses who might offer accounts that would lessen the likelihood of arriving a a finding of probable cause are not presented during grand jury proceedings (remember that the desired outcome is an indictment). And when a potential defendant appears before a grand jury, the prosecutor has a particularly favorable advantage. Witnesses (including potential defendants) may not be assisted by their attorneys during grand jury testimony. 
Lawyers and judges familiar with the way criminal cases are handled and tried--and I count myself in that number--immediately recognized what the general public probably didn't sense when Prosecutor McCullough announced (a) that he would defer the charging decision concerning the homicide (death by another person) of Michael Brown to a grand jury, (b) that he would do so without recommending a specific charge, (c) that Darren Wilson would testify (of course without the presence of his attorney), and finally (d) that McCullough's office would present the grand jury with all the possible evidence related to the investigation of Brown's death. The ensuing grand jury proceeding, dragged out over several weeks and marked by a number of curious leaks of what is typically secret information, gave trained legal professionals more clues. 
What was supposed to be a secret process focused solely on the proof needed to support charging Darren Wilson with killing Michael Brown was, to many legal professionals, little more than a cynical charade aimed at shielding Wilson from being charged in state court for killing Michael Brown. When McCullough's office announced that it would release all the grand jury testimony and witness statements to the public after the grand jury reached its decision we knew there would be no indictment. No prosecutor would ever do such a thing unless he or she knew there would not be a trial. To release grand jury material after an indictment but before trial would risk tainting potential jurors, among other things.


What is unacceptable is the charade the world, but especially Michael Brown's parents, other relatives, and neighbors, have been forced to suffer. Mr. McCullough's office treated this grand jury proceeding as if Darren Wilson was their client. Witnesses whose accounts supported Wilson's behavior were questioned in much different ways from those whose accounts pointed toward charging him with killing Brown. And the questioning of Darren Wilson by McCullough's deputies was remarkably unchallenging. Wilson's defense team could hardly have asked for better questions from lawyers paid to present the most favorable evidence and arguments for charging Wilson with commiting the homicide.

As Wendell concludes, Prosecutor McCulloch "oversaw a travesty of justice that will haunt us all." This seems correct to me. The hue and cry about what happened in this grand jury hearing will die down, and the protests will cease. The powers that be are counting on this.

But when glaring injustices are done in any given society, the karmic energy that the injustice sets in motion doesn't stop when the hue, the cry, and the protests end. It continues to be in play, as long as injustice is not addressed. 

And this will be the case with Ferguson.

The photo of Judge Griffen is from his Facebook page linked at the head of the posting.

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