Officer Darren Wilson faced the fairest Grand Jury proceeding that no law requires

By Dayvid Figler , written on November 25, 2014

From The News Desk

Editor's note: Dayvid Figler is a defense attorney and writer, based in Las Vegas, NV.

Ham sandwiches are trending today. By now, the old judicial chestnut about how “even a ham sandwich can be indicted by a Grand Jury” has hit twitterus ad naseum status.

In the wake of the “no true bill” by the Ferguson proceedings concerning officer Darren Wilson, and the young, unarmed person he killed, Michael Brown, the expressed outrage is straightforward – if an innocent, inanimate lunchable can be indicted, what sort of racism bullshit fueled “no charges” for an admitted homicider?

It’s a good question, but let’s get some context down for the discussion. First, not all ham sandwiches are innocent. Second, and possibly apropos of nothing, even the judge who made the famous hammy observation, Judge Sol Wachtler, was himself famously indicted (and convicted) for harassment of a former lover and spent a year in Federal custody. Third, Grand Juries are by design a bit of a mystery.

The whole concept of the Grand Jury was inherited from the English Common Law and incorporated into baby American Jurisprudence even before the Fifth Amendment became the law of the land. Holistically speaking, the secrecy of the Grand Jury was designed to protect the reputation of the person being brought up on possible charges. Of course, as America got older and more jaded, being “brought before the Grand Jury” became headline (and then click-bait) de jour. It’s also scary and usually indicative of more bad stuff to come. Rare is the time that the target escapes without an indictment and for good cause – the threshold is essentially a gentle screen. The standard is no better than: “is this prosecutor completely insane in bringing these charges, or is there any chance wrongdoing happened by our suspect?” In legalese, this is called probable cause.

In most jurisdictions, before a person charged with felonies has to face the expense and challenges of a public trial, there is some manner of jurisprudential vetting. Often, but certainly not always, this happens after the person has already been arrested and the police have surmised that (1) an illegal activity occurred and (2) the person they think did it – might have done it. Once the case is given over to the prosecutors, a presentment is made to either to a lower court or a Grand Jury. Which pathway the prosecutor chooses is typically a matter of complete discretion, and while the standard of review is the same, the procedure couldn’t be more different.

When a preliminary examination occurs before a judge, the Defendant is physically present throughout the entirety of proceedings and counsel for the Defendant is allowed to ask questions through cross-examination. The goal here, if not to convince the judge there isn’t a scintilla of evidence, is to completely discredit witnesses for later use in the usually inevitable trial. Not every case makes its way past preliminary examination. Sometimes, the prosecutors are just plain wrong in bringing charges and the skillful defense attorney can convince the alert judge to put an end to it right there. Though again, the burden on the prosecutor is really, really small. Nonetheless, the preliminary examination can be a riveting preview of trials with advocacy on both sides in full effect.

On the other hand, Grand Jury proceedings are, in most cases, decidedly one-sided affairs. The prosecutor essentially gets to pick and choose what evidence to present with the goal of confirming there’s any evidence of any crime and any evidence at all that they got the guy who may have done it. Understandably, Grand Jury proceedings, especially ones where there’s a dead, unarmed guy and a guy who admits to shooting him dead, don’t take months to receive evidence and deliberate. Indeed, most state Grand Jury murder proceedings take a couple of days at best, and normally not more than a week dependent more upon witness availability than complexity.

This is distinctively different from an “inquest” where the question isn’t about the murder itself, but whether or not an officer’s conduct so varied from acceptable procedure given the facts and circumstances that further inquiry is warranted. Inquests rarely if ever produce any further consequence in these situations, so no looting-level dissatisfaction typically results from the inevitable findings. As an example, in 2006, Las Vegas Metropolitan police officers shot and killed a 17-year old boy named Swuave Lopez. What makes this case noteworthy is that while the young Mr. Lopez was a mere suspect in a murder investigation, he was also handcuffed and running away from the police when he was shot in the back. No wrongdoing was found after the inquest. There was no rioting.

Presumably, the city of Ferguson could have presented an inquest but instead a criminal Grand Jury was convened and by now everyone knows they made the “rare” finding that no charges should be filed (in technical parlance they did not deliver a “true bill” which is required for charges to be filed). This was not a verdict and this was not a trial, this was the ultimate (still secret) deliberation of the members of the Grand Jury.

In reviewing the transcripts of the receipt of evidence, it appears everything was done within the letter of the law. So what went wrong?

In a phrase ironically borrowed from Spike Lee, the prosecutors (led by St. Louis County DA Bob McCulloch) did the right thing.

The burdens on a DA in an average case before the Grand Jury, especially in Missouri, are quite light. And this goes back to the beginnings of the Grand Jury system. Quoting the United States Supreme Court which quoted (Sir William) Blackstone, who sounds like a magician, but take it from any lawyer, is pretty much the 18th century burning bush of explaining English Common law, it goes like this (from a 1992 SCOTUS decision):

As Blackstone described the prevailing practice in 18th–century England, the grand jury was “only to hear evidence on behalf of the prosecution[,] for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined.” So also in the United States. According to the description of an early American court, three years before the Fifth Amendment was ratified, 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. Citing Respublica v. Shaffer, 1 U.S. (1 Dall.) 236, 1 L.Ed. 116 (O.T.Phila.1788).

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 for exculpatory evidence to be presented.

Now, most states have taken a modern view that a target of a Grand Jury is indeed entitled to have a prosecutor present exculpatory (or contradictory with the tendency to show innocence) evidence. Missouri is not one of those states. (State v. Easter, 661 S.W.2d 644 (1983)). Further, while most targets are allowed to testify before the Grand Jury, there is no requirement that the prosecutors are nice to them. Remember, the prosecutor brings the charges and expects to get the case moving forward; there is no attorney on the other side keeping them in check or advocating any position. It’s hard to imagine that most prosecutors wouldn’t take this opportunity to eviscerate the target with biting cross-examination. Instead, in the Darren Wilson inquiry, the DA asked questions like “All right. So you suffered the injury to your face and you showed us where the gun was grabbed and at the time when there is a struggle for the gun, take us from there.” (Grand Jury Transcript Vol. 5, page 222). That’s a stinging cross-examination?

Finally, as stated, the prosecutor has no duty to present the defenses of the Grand Jury, only to show that they have any evidence. In this case, the DA and his deputies made sure the Grand Jury was instructed on self-defense and standards for reasonable belief of fear. Here, the Grand Jury was presented with evidence of video of Michael Brown allegedly (but maybe not) taking cigars from a nearby convenience store. Here, the Grand Jury was presented evidence that contradicted the witnesses favorable to a finding of criminal culpability. Here, in other words, the DA went above and beyond any duty and gave the Grand Jury everything to think about in determining reasonable doubt. And there’s nothing illegal about that. In fact, ham sandwiches everywhere (and their defense attorneys) wish that thoughtful DAs would lay it all out to a Grand Jury and give instructions on defenses and essentially make the decision hard versus the typical five minutes of deliberation.

And there’s the twist. While everyone is understandably furious about the outcome of this Grand Jury, it could in fact serve as a shining example of how these proceedings can be conducted. That defendants of all race, economic status and station in life can be guaranteed the presumption of innocence though every proceeding. Consistent with this proceeding, the Missouri legislature could, and should, require exculpatory evidence to be presented in every case. Consistent with the deliberation, possible defenses should be required to be given as part of the Grand Jury’s instructions. Consistent with the suspect’s treatment, every suspect should be given a free pass to give a favorable narrative.

In Missouri, DA Bob McCulloch goes to sleep at night knowing he gave Officer Wilson the fairest Grand Jury proceeding that no law requires, but his moral drive allowed. Likely, had this degree of evidence been presented to a full Criminal Jury with defense attorneys working their magic, Wilson would have been acquitted or at least there would have been a hung jury.

But, of course, that’s all beside the point. Few if any civilians are afforded this discretion and that’s the cause of the unrest: Not that no charges were filed, but that Darren Wilson got a fair break that no one else would have gotten, especially had the circumstances of victim and perpetrator been reversed.

And that brings us back to the question of “what sort of racist bullshit is that?” The better question is “what sort of bullshit are Grand Juries for the other 99.9 per cent?” Bob McCulloch did not give Darren Wilson an unlawful pass; he was given the proper consideration that should inform and reform all Grand Jury proceedings to come. He did the right thing, he just picked the wrong time to do it.