The evidence is being released, but what really happened in the Michael Brown grand jury? Your [Fer]Guess[on] is as good as mi

The evidence is being released, but what really happened in the Michael Brown grand jury? Your [Fer]Guess[on] is as good as mine...

   It's been more than a week since the grand jury handed down its decision to "no bill" possible charges in the shooting death of 18 year old Michael Brown, allegedly by since retired Ferguson, MO police officer Darren Wilson, and passions still run high.  That's understandable given sincerely held feelings about racial profiling, heavy-handed treatment of young black males, perceptions about a criminal justice system that incarcerates African-American males at disproportionate rates, concerns about police brutality and excessive force; and beyond all else, the fact that a black teenager is dead, admittedly at the hands of a white police officer.  That the Ferguson shooting represents a tragedy for everyone involved - Michael Brown, his family, Officer Wilson, the Ferguson community, and the criminal justice system as a whole - is indisputable.  Whether or not the grand jury was correct to decline to present charges against Officer Wilson is another matter, entirely.

I wasn't inside the grand jury.  I haven't read the complete transcripts of proceedings.  I haven't viewed all the exhibits the grand jurors saw.  I wasn't present when Officer Wilson testified.  I haven't reviewed or evaluated the forensic evidence.  It's a pretty safe bet that, except for the prosecutors conducting the investigation, and the [reportedly] twelve grand jurors involved in the proceedings, nine of whom [also reportedly] voted not to charge, neither did anyone else.  For that reason, I do not understand how anyone can offer the opinion that the grand jury was wrong to decide what/how they decided; or that the grand jury should have indicted Officer Wilson; or that the grand jury should have let a [trial] jury decide.  In my opinion, such sentiments, as expressed by those who weren't there inside the grand jury room, are nothing more than agenda-driven opinion based on the same type of rank prejudice, bias, or closed-mindedness they ironically suggest informed the very decision (by the grand jury) they are criticizing.  Much of this is the result of a profound misunderstanding of both the grand jury's function and how it operates.

As a former state and federal prosecutor, and long-time criminal defense attorney, I have had both direct (presenting evidence to the grand jury), and indirect (representing witnesses called to the grand jury and defendants indicted by the grand jury) dealings with grand juries for nearly thirty-two (32) years.  I am intimately familiar with the grand jury's function and how it operates.  Allow me try to explain an otherwise enigmatic (and secret) process...

While ostensibly neutral, or independent in nature, grand juries are, in most instances, anything but.  Instead, they act almost exclusively as extensions of the prosecutorial function.  In a nutshell, their job is to determine whether or not probable cause exists for prosecutors to charge suspects with felonies.  The charging instrument grand juries issue (by majority vote) is called an indictment.  The universally recognized definition of probable cause is "where facts and circumstances within [the grand jury's] knowledge, of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by [persons] of reasonable caution that a crime [was] committed."  See Brinegar v. United States, 338 U.S. 160 (1998).  That's a pretty low standard; one that falls measurably below the proof beyond a reasonable doubt required at trial.  That's why, in the words of New York Appeals Court Judge, "A grand jury can indict a ham sandwich."  They can; and usually will.  More to the point, grand juries almost always do what the prosecutor tells them to do.

Why do grand juries do what the prosecutor tells them to do?  Because it is the prosecutor who convenes the grand jury.  It is the prosecutor who instructs the grand jury on principles and application of the law.  It is the prosecutor who, for the most part, decides who to call as witnesses.  It is the prosecutor who asks the questions, and it's the prosecutor who decides, primarily, which questions get asked — and which questions are appropriate to be answered.  It is also the prosecutor who ultimately decides what charges to present for the grand jury's consideration.  Notice a theme?

Yes, grand juries occasionally "flex their muscles" and try to assert their rightful independence, but those instances are tellingly rare and quickly handled.  In reality, it is the prosecutor's "Show" from start to finish, and about as one-sided a process as can be envisioned.

Grand jury witnesses are not subject to cross-examination, and their testimony is rarely scrutinized by the grand jury. If the prosecutor is content with their answers, the testimony goes unchallenged.  The prosecutor is under no obligation in most jurisdictions to present exculpatory (i.e., favorable to the accused) evidence, and in many jurisdictions, the rules of evidence are lax, if observed at all.  Moreover, grand juries do not hear from identified defense witnesses, and, perhaps most relevant to the Ferguson decision, grand juries rarely hear from the defendant, himself, and are not asked to consider "his side of the story."

This last is because in some states, the accused is afforded no right to testify.  In others like Massachusetts (where I practice extensively), the accused has the right to request to appear before the grand jury (to testify), but it's entirely within the discretion of the prosecutor whether or not to allow it.  Still other states, like New York (where I was also a prosecutor, and continue to practice criminal defense), the defendant has an absolute right to testify before the grand jury if he or she so desires.  In Missouri, the defendant is invited to testify, but not required to do so.

As an experienced criminal defense attorney, the situations in which I would advise a client to exercise his/her right to testify before a grand jury (in a jurisdiction that affords such a right) are extremely few and far between.  Generally, I advise clients that unless they receive a grant of immunity, they aren't going in.  This is because I not only want to keep the burden of proof on the prosecution, but also because I seldom want to tip my hand or show my cards before the prosecution is required to show theirs.  Painting one's client into a corner before the case against him begins rarely provides the requisite flexibility necessary to later pursue a zealous defense and, as I've said before, "far more clients talk themselves into trouble than ever talk themselves out of it."

For those same reasons, it isn't often that grand juries do hear from the accused.  In the rare instances where the grand jury is actually hearing from the accused what the late Paul Harvey was fond of calling, "the rest of the story," it can have a profound impact.  While probable cause does not present a high hurdle of proof, hearing from (and believing) the accused — having an opportunity to assess him and his credibility in real time — can absolutely undermine any attempted showing of probable cause.  Add to that most civilians feeling that law enforcement officers are owed our respect and appreciation, and that they are almost universally taught this from an early age, and one can expect, or at least understand, that grand jurors will be assessing police testimony in terms of what was "reasonable" in the eyes of the subject police officer under the unique (and stressful) circumstances described for the grand jury.  These "who you gonna believe?" - the police officer testifying in front of you or the person he has just depicted as a life-threatening assailant who is (in a complete role reversal) no longer "available" to defend himself - situations that follow make it easy to see how it is that many police shootings are deemed justified, especially by grand juries.

This is what I believe happened in Missouri.  I can't be sure; I don't know, I wasn't there.  I have "been there," though in my years as both a prosecutor and as a defense attorney.  Police testimony in such circumstances can be persuasive.  If civilians raising affirmative defenses of self-defense can sometimes overcome a prosecution's case even where the high standard of proof beyond a reasonable doubt has been met as to all other elements at trial, imagine how easily a self-defense claim by a police officer can undercut the much lesser standard of probable cause in the grand jury's initial investigative stages of criminal proceedings.

Was this the correct decision in Ferguson?  Who knows?  From what I've said, I suspect it was a "clean" decision, by a grand jury persuaded by Officer Wilson's testimony (along with purported medical, photographic and forensic evidence).  Is it the end of the issue?  NO!  Attorney General Eric Holder and the U.S. Department of Justice can pursue criminal civil rights violation(s) against (former) Officer Wilson, just as they did against the officers acquitted in California state court in the Rodney King beating.  To do so, they need probable cause that the officer acted unreasonably and used "excessive force."  The best guess here (unlike the King case where there was actual video footage of the incident) is the DOJ will ultimately conclude they don't have/can't establish probable cause to indict; thus, in a round-about-way validating the Ferguson Grand Jury's ultimate finding, after all.

Even as the evidence presented in the Ferguson Grand Jury is being (uncharacteristically) released to the public, the proceedings will remain shrouded in a degree of mystery – we still will never really know what went on in the minds of the grand jurors themselves.  Hopefully, this article at least shines a little light on the process and informs some thoughts about the latter, unless they are willing to tell us themselves.

 

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases.  He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston.  A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record.  Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country.  Website: bradbaileylaw.com