Why the Ferguson Grand Jury Proceeding Was Wrong

First, I want to clarify a few things. This post is not about whether Michael Brown attacked Darren Wilson or whether Darren Wilson was justified in shooting him. Those are questions for a criminal jury at trial. This is a post about our legal system, and how it’s supposed to function. Second, I am a licensed attorney who has worked in prosecution on both the state and federal level. Third, I do not blame the members of the grand jury for this egregious miscarriage of justice, because it is apparent to me that no one explained to them what they were supposed to be doing in the grand jury room.

The function of a grand jury is to determine whether there is probable cause to believe that a crime has been committed by the person they are investigating.

  • The grand jury does not determine guilt or innocence. 
  • Probable cause is a significantly lower standard than “proof beyond a reasonable doubt,” which is the standard at a criminal trial. It’s almost the opposite. The grand jury is being asked to determine if there is any reason at all to believe that a crime was committed.
  • The prosecutor provides evidence to the grand jury that tends to show that a crime occurred.
  • The person being investigated has no right to appear at a grand jury proceeding, no right to have an attorney present, and no right to produce evidence.
  • The grand jury does not determine whether the person being investigated might have had a valid defense to their action. That is because the grand jury does not determine guilt or innocence.
  • If the evidence presented establishes probable cause to believe that a crime may have been committed, the grand jury returns an indictment, which is a document that notifies the person of the charges against them. At that point, the person being investigated becomes a defendant and is entitled to all the rights and guarantees promised by our Constitution.
  • An indictment is not a finding that the person is guilty. The grand jury does not determine guilt or innocence. 
  • Because of the extremely low burden of proof required at the grand jury level, and because the grand jury is not supposed to be presented with exculpatory evidence or defenses, grand juries vote to indict in the vast majority of cases not involving a black person shot and killed by a white police officer.

    When a grand jury can hear evidence that a police officer shot an unarmed man repeatedly and find that there is not enough evidence to have a trial, the prosecutor has been derelict in his duties. The prosecutor’s job is not to present a balanced view of facts to the grand jury, and it is not to educate the grand jury on defenses. The grand jury should never have been given a copy of the self-defense statute or photographs of Darren Wilson’s injuries. They weren’t there to decide whether Michael Brown did anything wrong. The prosecutor should be fired, because he did not do his job. 
    And that is why, no matter what you think of Michael Brown or what happened, the grand jury’s decision yesterday was a horrible blow to our justice system. What’s next? Should white frat boys be able to avoid indictment for raping women because the grand jury heard evidence that she was asking for it? 
    A person’s right to access the justice system should not be dependent on whether he was fortunate enough to be born as a white male. Everyone in America lost yesterday.
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