No Grand Jury Indictment in Ferguson Shooting of Brown

The Grand Jury is not going to indict officer Darren Wilson over the August 9 2014 shooting of Michael Brown in Ferguson, Missouri.

The shooting, which prompted outrage and protests in the region for a significant period afterwards, had been with the Grand Jury for a considerable amount of time,  and was only presented after a vocal protest from the local population. Brown’s family have asked for any actions and responses to be kept peaceful, a request local officers have not yet acknowledged.

A parallel Federal investigation into civil rights charges has also failed to return indictments.

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Ok, if you’ve read that and wondered why you’ve not seen it elsewhere, that’s because it’s not true, not YET.

As this is being written, the Grand Jury has yet to decide either way, which means it won’t indict him. And there’s a reason, because Grand Juries are things where it either happens right away, or it never does.

There’s a reason for that.

Grand juries are one sided things, a prosecutor brings evidence that a crime MAY have been committed.

The Missouri AG’s guide to the court process states a grand jury process as follows.

The prosecutor presents evidence to the 12 grand jurors, nine of whom must agree on whether a crime was committed and whether there is probable cause to believe the defendant committed it.

ONLY the prosecution presents evidence, which the grand jury is allowed to contemplate.

CC-BY Thunderchild7There are some affirmative defenses, but that’s a defense to the crime, rather than it being ‘ok’ to kill someone – police officers don’t have carte-blanche authority to punish crimes, let alone capitally [YET]. Such defenses include ‘self defense’ and in some states ‘stand your ground’. However, the day it becomes legal to kill someone is the day society dies)
That’s the first part done.

The second part, probable cause of the defendant’s involvement? Got that too. He’s admitted it, there’s countless witnesses, mountains of evidence.
That’s the second part done.

And thus, there, we have the basis for an indictment under Missouri law. All the prosecutor needed to do is present the basic facts, maybe the witnesses that say Brown had his hands up, and was not combative. Prosecution gets to decide what evidence to present.

There’s no defense representation, because it’s NOT a trial. A grand jury exists to see if there is some evidence of a crime. It’s not a judgement of the guilt of innocence of the defendant. It’s a statement that there’s a legal controversy involving this person, and so we need a trial to sort out the legal details.

And that’s why there will be no indictment. Indictments are so trivially easy to get that if it were to happen, it would have happened within an hour.Sometimes less than a minute. One North Carolina Grand Jury handed down 276 indictments in 276 cases in 240 minutes (4 hours) – 51 seconds each on average.
If it’s taking more than a day, there’s one (or more) of 3 things going on.

  1. Jurers are using outside prejudice and information to prejudice their views on the case (which is why the FPD released the video that purported to be a strongarm robbery, it wasn’t according to not just the shopkeeper, but the FULL footage). That’s trial by media, and should scare the crap out of anyone, when facts take second place to crafted narratives in court proceedings)
  2. The Prosecutor is extremely inept. Very unlikely.
  3. The Prosecutor is deliberately trying to avoid an indictment. Quite likely. After all, the prosecutors office controls what the Grand Jury sees, and what they [are supposed to] base their judgement on.

Now, let’s reiterate some things quite clearly.

  • Grand Juries are not trials.
  • The guilt or innocence of the accused is not a question for Grand Juries.
  • The Grand Jury’s job is to see if there MAY be a violation of the law. As such, it’s only concerned with the WHAT of an incident. The WHY and the HOW are for a trial court and a trial jury to decide on.

So, if Missouri law states that a police officer may shoot a person at any time, there would be no indictment, because there would be no violation of the law. If the law states that in certain circumstances a police officer may use lethal force and there is clear, coherence, and unimpeachable evidence that one (or more) of these circumstances occured, then no indictment.

If however, they can use lethal force in some circumstances, and there is a question over those circumstances occurring, then there is grounds for an indictment.

Instead of letting it go to trial, and having the evidence presented, explained, cross-examined and then letting people judge based on that, we have a group instrumental in the justice system who are afraid to let the justice system work. Either they’re of the mindset the system no longer works, or they are afraid it does and will provide an unwanted result. Thus the video release by the Ferguson PD, to confuse the issue, and paint a narrative, even while claiming that narrative had no impact ont he events, and judging by the comments on many sites, it worked.

It’s as if the police are afraid of the law. It’s just a shame they won’t, to borrow a phrase of theirs, “cooperate in the investigation” because “the innocent have nothing to fear”. That has led to a public perception that the police hold themselves to be above the law, and so become distrusted (and are really not helped when officers attempt to mislead courts when they’re being reined in for excessive violence). If they want to get some respect, then the answers simple, they just need to be more accountable.

  • E

    Your analysis is omitting the very likely alternative that the prosecutor doesn’t think he could get a conviction on Wilson. A prosecutor is not allowed to subject a defendant to the hardships of a trial if he doesn’t believe it’s probable that a jury will convict. From the Federal GJ Handbook:

    “(5) The Evidence Needed Before a “‘True Bill” May Be Voted
    It is the responsibility of the grand jury to weigh the evidence presented to it in order to determine whether this evidence, usually without any explanation being offered by the accused, persuades it that there is probable cause to believe that a crime has been committed and that the accused was the person who committed it. Remember that the grand jury is not responsible for determining whether the accused is guilty beyond a reasonable doubt, but only whether there is sufficient evidence of probable cause to justify bringing the accused to trial.”

    The operative word being “probable cause.” As opposed to a trial jury’s finding of guilt beyond reasonable doubt, the GJ still needs to find that based on the evidence presented the defendant is ‘probably’ guilty, not merely that he might be. Meaning the GJ needs to believe that it is more likely than not that a crime was committed and Wilson committed it. I agree with you that the prosecutor could have presented only a sliver of the evidence, but intentionally omitting any exonerating evidence or not properly advising the GJ on police use of force laws is a blatant “malicious use of process” or prosecutorial misconduct.

    • With a police officer, I feel that one should always err on the side of caution.

      Officers in the US are given immense power (which has increased exponentially in the late 15 years), but at the same time they’ve had a reduction in oversight and accotnability, rather than the opposite. They have a trust and a duty to uphold and enforce the law, and so should be held to higher standards as a result when it comes to acting within that law.

      As far as probable cause goes, Brinegar V US defines it as “where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed”.
      Well, We have a bunch of witnesses saying one thing, and the defendant (Wilson) saying another (or so it has been reported) Unless you take the view that a police officer would never lie and is more trustworthy than any one else (not such an unusual position, One state Supreme Court ruled recently that an officers after-the-event report was ‘more accurate’ than the video footage of the event itself), then the fact that the one guy who says he was innocent of a criminal action, is the one accused of the criminal action, is extremely telling in itself.

      As an officer, he would have received training in both the law, and in situational handling. The outside witnesses have neither. So, one group has testimony backed by knowledge of the law, and knowledge of what may be deemed acceptable, and could tailor testimony to suit. That it diverges from other testimony and witness statements also indicates probable cause.

      I would go further and say that absent clear, uncompromising and unimpeachable exculpatory evidence, probable cause is not so hard to find. Otherwise, we have a simple process for getting away with murder:
      Be a Cop.
      Enter into a confrontation
      shoot him and say you were attacked
      Take paid vacation while colleagues jury-tamper
      Profit.

      Are there questions? Hell yes. Did he kill someone? Hell yes. As I believe the Supreme Court has said (and was reminded by the dismissal of the Seattle PD officers suit about the new ‘use of force’ measures they’re under there – there is no enumerated right of self defense.
      It’s an affirmative defense. If your answer to a crime is an affirmative defense, you’re de facto admitting that a crime was committed (ie Probable cause), but that extenuating circumstances mitigate things, which is the job of a trial court to decide.

  • E

    The burdens vary from state to state. MO police use of force jury instruction:
    “The state has the burden of proving beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer. Unless you find beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer against [name of victim], you must find the defendant not guilty (under Count ____).”

    Considering the large factor the defendant’s state of mind plays in such cases, we could paraphrase the jury instruction to read: “The state has the burden of proving beyond reasonable doubt that the defendant was not in fear for his life. Unless you find beyond a reasonable doubt that the defendant was not in fear for his life, you must find the defendant not guilty.”

    Believe me, I get your position. It’s just that most of these cases aren’t about a prosecutor not wanting to prosecute police, or jury nullification when they do; it’s about a prosecutor knowing the near impossibility of getting a conviction and juries following the law. In other words, the real culprit (imo) isn’t the cop; it’s the laws, policies and procedures we as society provide them with. As you alluded to, MO law is essentially giving cops a license to kill, with little to no accountability. So if want to change outcomes, we need to change the laws, policies and procedures. Unfortunately, addressing everything else under the sun, except the laws, policies and procedures, is all we’re talking about. [rant over]

    • In any case, the state has the burden of proof in proving beyond reasonable doubt.
      And that’s a trial jury instruction.

      That’s not the probable cause of a Grand Jury. Probable cause is a really low standard, and one Wilson has already admitted to, with, as you have stated, an attempt to claim an exemption.