legal analysis of Wilson non-indictment

NJlonghorn

NJlonghorn

2,500+ Posts
I was happy to see Wilson not get indicted. While we don't really know what happened, I think it is very unlikely that he did anything wrong.

But I'm having second thoughts after speaking at length this weekend with a well-regarded attorney who represents high-profile criminal defendants. She agreed that Wilson was probably innocent. However, she felt that there appears to have been enough evidence to justify an indictment, and that the prosecutor should have tried to get one.

Instead, it looks like the prosecutor tried to present a fair and balanced case before the grand jury, so that they could weigh the evidence and decide what really happened. In particular, the attorney I spoke with was offended that Wilson was given a chance to explain himself before the grand jury. In her opinion, if there was enough evidence to justify requiring him to explain himself, then that explanation should have been given at a public trial.

I'm still leaning towards saying the grand jury did the right thing. But I'd like to hear reaction from people who are actively involved in the criminal-defense arena. How does it usually work? Did the prosecutor handle this right?
 
I've served on a grand jury. In Texas, at least, it's up to the grand jury, not the prosecutors whether or not they hear from those to whom we are considering indictment. Some suspects submit letters through their defense attorneys and we read them with rapt attention. During the term I served only one suspect requested an opportunity to speak with us. We voted and overwhelmingly said "yes." Based on the evidence we already had, we were thinking "Hell yes, we'd love to hear you explain your side of this." Anything he said would likely have been used against him in trial. He would have had to present sworn testimony with no defense attorney present and be peppered with hostile questions from both prosecutors and grand jurors.

The coaching we had was basically we would only indict cases in which we were convinced prosecutors had ample evidence and successful prosecution was likely. We declined to indict people we were pretty sure had committed the crime, but knew that proving beyond a reasonable doubt was unlikely. Our goal was justice and we were conscientious with our power and were confident prosecutors had the same view.

Whenever there was a police shooting we heard testimony, though never from the officer involved. I expect if you did a poll, you would find grand jurors had a positive view of police and law enforcement. But there were smart people around the table that had high self esteem. They could see though inconsistent testimony, sloppy investigation or opinion unsupported by evidence.
 
Oh: I forgot the most important part. If the group as a whole believed someone not guilty, there would have been no indictment. In fact, it takes nine positive votes to present a true bill, so a minority of jurors believing in innocence could thwart an indictment.
 
Probably no lawyer in the country knows less about criminal procedure than I do. I've never handled a criminal case (not even a traffic ticket), and I think that if I tried to, my inexperience would be obvious to everybody in the room. Though I took a course in law school called "Criminal Procedure," it was really a course about the constitutional rights of the accused. Nothing about actual criminal court procedure was discussed, so I'm pretty dumb.

Nevertheless, I think your friend makes a good point. I'm talking out my *** here, but at least in Deezestan (the hypothetical nation in which I am the benevolent dictator), the purpose of the grand jury wouldn't be to weigh evidence but to determine if there is sufficient evidence to bring the case to trial. That means that they should generally only be considering evidence that tends to support indictment and conviction, which means the accused shouldn't be testifying. If they are hearing defense evidence that contradicts the prosecution's evidence, then they are necessarily weighing evidence and invading the province of the petit jury.

I certainly don't think the prosecutor should be presenting a fair and balanced case. He's supposed to be an advocate. If he isn't confident that the evidence supports an indictment, then he shouldn't even be pursuing the case.
 
I've handled thousands of criminal cases as a prosecutor and defense attorney. A prosecutor takes an oath to see that justice is done, not to get convictions.

How in hell are you supposed to try to convince a jury that a person is guilty beyond a reasonable doubt if you are not certain yourself? I have moved for dismissals during trial when I was a prosecutor because I thought my evidence was not strong enough.

The DA in Missouri did what he should have done----he presented the evidence to the GJ for their consideration but did not recommend an indictment.

"Let's have a trial so the public can follow the evidence in the papers or on tv" is not the way things should work.

IF there is doubt among professional prosecutors you let the guy go. Better a thousand guilty go free than one innocent go to jail-----that is the standard, or should be.
 
Huis,

Your left nut knows more about this than I do. However, aren't you contradicting yourself a little? You've rhetorically asked how a prosecutor can try to convince a jury that someone's guilty beyond a reasonable if he doesn't believe it himself. However, if the prosecutor doesn't believe in the case enough to make a recommendation, then why even take it to the grand jury in the first place? What if they had come back with an indictment? If he would just drop it in that scenario, then why do it in the first place?

What this sounds like to me is a prosecutor who knows there isn't a case, but in light of the violent black mobs in the streets, he doesn't want to be the one who makes the call not to prosecute. So he dumps that responsibility on the grand jury. I can't say I blame him. No reason for him to get "Reginald Dennyed" just because he was unlucky enough to be a prosecutor in Ferguson at a bad time.
 
Thanks, Huis -- I figured it was only a matter of time before you chimed in on this thread. I started it with you in mind, after all.

As Deez points out, it sounds like what went "wrong" was bringing the case to the grand jury in the first place. I put wrong in quotes because the prosecutor's decision is understandable in light of how the public would have reacted if the case hadn't been pursued at all.
 
I'm no lawyer and don't know procedures in Missouri, but Denton County prosecutors told me they always bring officer-involved shootings to the grand jury. Not sure if that's a local policy, standard procedure or law.
 
For the lawyers of the board I saw the very liberal Lawrence O'Donnel criticized the Asst. DA for citing a Missouri Law that was deemed unconstitutional in the '80's as a major screwup. Essentially the law defined when an officer had a right to shoot. They told the GJ at the beginning then near the end of the GJ sessions realized that the law they were citing was unconstitutional they asked the GJ to disregard their written statute they'd given them yet didn't give the GJ the correct interpretation. I'm wondering if O'Donnel has any valid point?

To those on the right...no, I don't watch MSNBC but got to the link through facebook of the video.
 
IN cases of police shootings you always take the case to the grand jury and it would have been stupid not to, given the circumstances.

Deez: if the GJ had indicted the proper thing to do would be to recuse your office and get the governor or the presiding judge to appoint an independent prosecutor. I have served in that position several times when prosecutors decided there was a potential for being seen as biased, etc.

One of the few things I have heard from the Brown family lawyers that made sense was that all police shootings should be taken to the GJ by a prosecutor not tied to local police departments.
 
SH: I saw a partial on O'Donnell wetting his bed about the prosecutors giving the GJ some old law that was not constitutional at the start of the proceedings. As I recall, the statute they were presenting dealt with the police use of force, not deadly force.
The Supreme Court had ruled it unconstitutional for some reason and I assume it was because it in effect would allow the cops to shoot people while fleeing after a theft, for example. My guess, and that is all it is because O'D was apoplectic and not subject to cross examination, is that there are differing standards in Missouri, as there are in Texas, pertaining to when you can use force and when you can use deadly force.

At the end, it was my understanding that they gave the GJ the correct standard re the use of deadly force.

Given where he works, O'D could not very well say the DA office essentially handled the case correctly.

Some decades ago I came across a book published by a civil rights group or the Panthers or somebody called "A Hundred Years of Lynching" or some such,. It was reprints of news stories through the years about lynchings of black people, and not exclusively in the south.

My standout favorite was one entitled "Mob LYnches Wrong Negro." Like there was a correct one to lynch, The news media dos a lot of lynching these days and there is little restraint to speak of. In former years I handled a lot of defamation defenses for tv stations, radio stations and newspaper and magazines and my lack of confidence in the journalism profession grew by bounds. They mostly try to get it right and sometimes succeed. The best media movie ever made was not All The President's Men but rather the Paul Newman/Sally Field film Absence of Malice.
 
Good responses. After everything came out I think it was obvious that there is no way Wilson could be convicted by a jury. All it took was one or two credible witnesses to corroborated Wilson's story coupled (and probably more importantly) with the physical/forensic evidence (with the added investigation by the BO/Holder DOJ and military) to corroborate Wilson's story and it really was over. I'm sure Huis would agree as a defense attorney that with the above an aquittal was pretty much a guarantee.

As mentioned, cop shootings are different whether in Ferguson or anywhere. There is obviously a potential bias between prosecutors and cops since they work together so, as a result, almost all DAs will present cop shootings to a grand jury just as this guy did so that the public has some level of transparency about why the case didn't go to trial. The tactic used by the DA here is actually not that uncommon and the media types know it but just don't care.

Crockett- I am intrigued by your grand jury experience. We keep hearing things like "indict a ham sandwich" and of course there is the 99% rate for indictments by the feds. If you could, can you put a percentage on the number of cases that your group no billed. From your post above it certainly seems like the number was less than 99%.
 
I, like Crockett, sat on a Grand Jury about 12 or 13 years ago. It was a fascinating experience and indeed, given that we only needed a "preponderance of the evidence" to decide to indict a defendant, we indicted at least 95% of the cases presented during our six month term.

And understand, all we did was give the local DA the green light to pursue whatever felony charges had been brought against the defendants, we neither tried nor convicted anybody. Most of our cases were things like a 3rd or 4th DWI arrest, felony possession of drugs, indecent exposure (a guy bicycled nude past an elementary school - really, dude?) and the like. However, we also had a single case in which a police officer fired on a suspect and caused her death. The dashboard video clearly showed her lunging at the officer while wielding a butcher knife, after having been instructed to drop the knife, etc. So we did no-bill in that particular case. It was pretty obvious to us that she was putting the cop's life in danger and he had the right to fire. Sad, but the video was very telling.
 
Bronco; Speaking on the grand jury experience, I'd certainly disagree with the "indict a ham sandwich." However, most of the time we did agree with the prosecutors, officers and detectives who brought us cases. Honestly, that was because most defendants were caught red-handed. But we didn't agree with the law enforcers every time and I can remember denying some requested indictments. Once we indicted when the prosecutor recommended against because we thought the detective had an adequate case.

Some jurors had strong feelings and if we had a grand juror absent, two could cause a no bill. That happened more than once.

Sometimes the prosecutor didn't make a recommendation. He genuinely wanted to know the feelings of a panel of 12 caring citizens.
 
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