Saturday, November 29, 2014

Ferguson Grand Jury Decision Part Three: The Grand Jury Misled by Prosecutors

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Previous Related Posts:
Ferguson Grand Jury Decision Part Two: Darren Wilson's Weird Testimony
Ferguson Grand Jury Decision Part One - No Indictment, but Blame the Victim and Social Media

The Grand Jury in Ferguson was not only misled by strange testimony from Officer Darren Wilson about the "demon" Mike Brown, but was also misled several ways by Prosecutor Bob McCulloch. While at first we thought McCulloch's main sin was his hands-off approach to steering the Grand Jury one way or another, he may have actually broken the law by giving the jury illegal instructions. And I'm sure there is more to come about how corrupt this process was, not only for Missouri, but for the country as a whole.

Full (and bizarre) Statement from Prosecutor Bob McCulloch in Ferguson, MO.

Ferguson reminds us that we still have a race problem in America. But the face of this problem is not Darren Wilson’s. It’s Bob McCulloch’s.
. . . McCulloch short-circuited the process — reinforcing a sense among African Americans, and many others, that the justice system is rigged. He almost certainly could have secured an indictment on a lesser charge simply by requesting it, yet he acted as if he were a spectator, saying that jurors decided not to return a “true bill” on each possible charge — as if this were a typical outcome.~
~ Dana Milbank on Washington Post

The St. Louis County prosecutors were trying to be clever, repurposing an ancient institution for the contemporary political situation. They seemed to think that, because the grand jury members are drawn from the public, they would create public validation for whatever outcome the grand jury reached.
Yet public validation of ordinary jury trials depends on the public having heard the evidence. The Constitution provides that criminal trials be held publicly, precisely so that the citizenry knows what's going on. Grand jury proceedings are held in secret. That must've appealed to St. Louis County prosecutors, who sought to avoid a media circus. But releasing a summary of the grand jury transcripts afterward is a far cry from a public trial. Secret evidence was unlikely to produce public validation -- as, in fact, it did not.
~ Noah Feldman on Bloomberg

From Think Progress:
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.

Bob McCulloch had no answers - the "Fix was In."

According to Lawrence O'Donnell of MSNBC, Jurors were given copies of a 1979 Statute concerning when it is lawful for a cop to shoot a fleeing suspect. The problem is that the law was ruled unconstitutional in the 1980s, so . . . that's a huge problem. How could Bob McCulloch NOT know that the law was unconstitutional?

Via RawStory
O’Donnell said that early on in the jurors’ deliberations, Alizadeh handed them a copy of a 1979 Missouri statute saying police were “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or prevent the escape from custody.” However, he explained, the Supreme Court found those kinds of statutes to be unconstitutional six years later.
As the Daily Kos reported, the high court found in Tennessee v. Garner that “where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”
. . . handing the jurors the original statute, O’Donnell said, ...conveyed the message that Wilson did not feel his life needed to be in danger for him to be legally justified in shooting and killing 18-year-old Michael Brown on Aug. 9.


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