Verdict: The Grand Jury Process Was Fair and Just

abstract door grand jury room

The accusations and complaints about the Darren Wilson grand jury just don’t hold up.

Criminal law professor Paul Cassell consolidates several issues raised in the comments here and in the news media in his excellent analysis in the Volokh Conspiracy, here.

Among the criticisms he addresses…

1. Using a Grand Jury Deviated from Normal Process.
2. The Grand Jury Took Too Long.
3. The Grand Jury Got Too Much Evidence.
4. The Grand Jury Operated in Secret.
5. The Grand Jury Was Exposed to Pressure.
6. The Grand Jury Did Something That Grand Juries Ordinarily Don’t Do.
7. The Grand Jury Misunderstood the Standard of Proof.
8. Robert McCulloch was Biased and Should Have Recused Himself.
9. The Grand Jury Evidence Shouldn’t Be Released.

He also echoes my conclusion about many of the protesters, as he ends his piece with this:

“But there remains the important substantive question: Did the grand jury get it right — that is, was there insufficient evidence to indict?  A fair answer to that question can only come from reading the testimony of 60 witnesses, something that critics of the grand jury’s decision have obviously not yet bothered to do.  Yesterday I wondered whether the facts before the grand jury really mattered to some of the more vocal supporters of Michael Brown.  Today I think it is becoming increasing clear that they don’t.  For too many people, the issue of whether to indict Officer Darren Wilson was never about the process employed or the evidence collected.  But fortunately, the prosecutors and the grand jury took a different tack.”

The complete transcript of the grand jury proceedings have been released, and you may read them here.


39 thoughts on “Verdict: The Grand Jury Process Was Fair and Just

    • Have you noticed that there are a lot of people, every time something like this happens, who fear that a jury will base its decision on a fear of riots. Yet, we’ve really not seen that in the Zimmerman case or in this one.

      It heartens me that, while there are unethical jurors out there, as a whole, it would appear that juries want to do the right thing and decide utilizing the evidence at hand.

  1. It’s a good article – saw it earlier today – should be read by all.

    Together with two other articles, it raises an interesting question: when, if ever, should a police shooting be brought to trial?

    Since 2004, there have been at least 14 police fatal shootings in St. Louis county. In none of them have the police ever been charged.

    It’s not just St. Louis: “The FBI reported 410 justifiable homicides by law enforcement in 2012. The number of indictments appear to be minimal after a TPM review of available press reports. A 1979 study found three convictions out of the 1,500 police killings it studied over a five-year period.”

    There is good social reason for this – the state, by definition, retains a monopoly over deadly force, and it’s hard to imagine police actions being wholesale subjected to second-guessing by the legal system. It would be mess for all.

    But that said, the broader social issue is the evident disparity of application. Far too often we see young black male victims of white police shooters. There are lots of solutions: more black cops, better neighborhood policing, body cameras on all cops. What’s the right role of the courts, and of grand juries, in dealing with this broader social issue? I don’t claim to have the answer, but “zero” seems a step too far.

    • “Together with two other articles, it raises an interesting question: when, if ever, should a police shooting be brought to trial?”
      When it’s really an execution. When no threat was posed to the officer.

      Your subsequent comments make your initial comment mysterious to me. If there are racist elements in the system, that does not mean there was in this case. If there are racist cops in Ferguson, it does not mean that Mike Brown was a victim of racism in this instance. If some cops are trigger happy, that does not mean that Wilson was when he shot Brown. Nopne of those can be extrapolated from unrelated history or events. They have to be proved. They were not.

      The fact that African Americans are frustrated and angry about the past, present or future should not govern the justice system in this case, or any case. The fact that activists chose to focus on this case to make a larger statement that the facts of the case can not sustain should not cost Officer Wilson his freedom. What should govern are the facts of the encounter, and all of the media noise, accusations, protests and threats of violence should not effect the process in any way.

      So are we really left, as with the Zimmerman train wreck, with the same “we understand how you feel, because we are so compassionate, so we will accept your unjust, irrational, fact-free and ignorant accusations and actions as less indefensible than they really are, because we are essentially infantilizing you, African Americans, and saying that we expect you to reason like angry 12-year-olds, and we understand?” Because I reject that. I really don’t care if a legacy of racism had blacks believing that Zimmerman was racist stalker—the facts didn’t support that, and I have no respect for that position no matter who hold it or why. The same here. The fact that the cop was white and the victim was black is NOT enough to make the case the protesters think is made, and absent facts, they have no justification for their certitude, and neither I, nor you, should excuse or enable toxic, ideologically motivated hate.

    • “The State, by definition, holds a monopoly on lethal force.”

      Are you kidding, Charles? Just what State are you referring to? Not one of the United ones… by definition. The Second Amendment exists specifically so that government will NOT have that monopoly. When it does, tyranny follows, sooner or later. The Framers knew that. God help us all when that nightmare occurs in America. If more people in Ferguson had made it known that they were armed and prepared to defend themselves and their property from outlaw gangs in the streets, their town might still exist with something of an economy.

      • “The monopoly of the legitimate use of physical force, commonly but controversially known as monopoly on violence (German: Gewaltmonopol des Staates), is the defining conception of the state as first expounded by sociologist Max Weber in his essay Politics as a Vocation (1919). Weber claims that the state is any “human community that successfully claims the monopoly of the legitimate use of physical force within a given territory”;[1] thus, “the modern state is a compulsory association which organizes domination.”[2] In other words, Weber describes the state as any organization that succeeds in holding the exclusive right to use, threaten, or authorize physical force against residents of its territory. Such a monopoly, according to Weber, must occur via a process of legitimation.”
        Wikipedia entry on the concept

            • That’s the heart of the issue, I think, Julian. It’s certainly true on the face of it, but what are the indications that legal oversight is being properly applied?

              –If “top secret” is stamped on a million documents, it’s still legal – but do secrecy stamps at that level constitute an abuse?
              –Millions of people were once bought and sold as slaves in this country, and it was all quite legal – but we eventually decided it was unjust.
              –If dozens of unarmed black men are shot and killed by police, and the shootings turn out to be approved by the law in every case, then it’s definitely legal – but when does it begin to appear unjust?

              To look at Ferguson solely through the lens of “was the shooting legal?” is to miss a broader question:
              How are we doing as a society in maintaining the linkage between the law and justice?

              • That’s backwards, though, right, Charles? It makes sense to look at the over-all evaluation of law enforcement and justice through the issues raised in Ferguson, but it is wrong to bring larger issues into the resolution of Wilson’s legal dilemma.

                • Oh we agree on that. You go to court with the law you have, to paraphrase someone. But, it’s also a shame to let a good crisis go to waste, to paraphrase someone else. If all we were to take away from this is a debate about the finer points of grand jury law, we’d be missing said opportunity.

              • I do get what you’re saying, with these two articles reflecting some of my thoughts on this:

                But I think, ironically enough, the racialization of the debate has forestalled greater efforts to think about an issue which I think reflects broader potential problems with the intersection of police authority and poverty in general, regardless of race.

                • Interesting article, thanks. Over a thousand shootings per year by police, more than half of them fatal. That’s a lot.

                  The “racialization” of the debate is something I think is inescapable. All good liberals have a strong desire to reduce race issues to economic issues, but when it comes to race, it’s just not always so. I read something this morning about a black man saying, “When I walk down the street, they don’t see my PhD or my income, they see my skin color.”

                  Not that I have The Answer. And piecemeal solutions are probably better than none.

                  • Not purely economic, of course, but I think the way police departments have learned to handle themselves in places like Ferguson have unfortunately bled through to other PDs and even community watches as well. Add to that how local communities react to said policies, and we’ve got a wonderful viscous cycle going on.

                  • Ethnic bias and privilege exists and existed in every human society for at least tens of centuries. I believe that this proves that ethnic bias is a fundamental feature of humanity.

                    “When I walk down the street, they don’t see my PhD or my income, they see my skin color.” Chinese people in Malaysia may very well say similar things. Similar sentiments existed throughout the world.

                    • Strangely enough, I’ve got no objections to what you said; in fact, I’m a little amused at all the international media focusing on racism and racial disparities as if it’s solely an American problem (it would be so much easier to solve if it was). Still though, even stuff like the problems of the Chinese in Southeast Asia often stem from perceptions about their economic status and different cultural norms and mores.

          • Read up on Max Weber, probably the major founder of the field of sociology. If you don’t like Wikipedia, try googling
            Max Weber’s Theory of the Modern State: Origins, Structure and Significance.
            He famously includes among the key characteristics of the modern state “the monopoly of legitimate physical force.”

    • Or the one where people post examples of riots which involved more non-blacks, as if it makes the Ferguson ones seem any better (pro-tip: most white people thought those riots were stupid too).

        • On a side note, a politically liberal close family member (despite her utter detestation of the martial law government which ruled the Taiwan she grew up in, her involvement in some of the protests against it during its dying days, and her strong support of the Sunflower protests there earlier this year) is actually much more sympathetic to the police and Guard than she is to the rioters with regards to Ferguson (though that might just be because she views the latter as self-destructive idiots).

    • After reading that, I’m willing to bet that Carol Anderson is one of the social justice theorists who redefines racism to exclude anti-white prejudice. Everything conservatives suggest is really just an attack on the black man in her mind it seems.

      • I particularly like the argument that trying to reduce the size of government is based on white racism, because the blacks depend on government jobs. I never thought of that! I’m pretty sure nobody who advocates smaller government has, either: “Heh, Heh…now let’s put all those African American out of work by eliminating inefficient and expensive government bureaucracy! BWAHAHAHAHAHAHA!!!

      • Carol Anderson buries herself and any fair claim of injustice she might be making, by inferring that the following paragraph of absolute absurdity is the unvarnished truth:

        White rage is all racist and only racist, and specifically racist against Blacks. Black rage is fully justified by White rage, or alternatively, by White privilege. Black rage – including Black rage about the Ferguson grand jury conclusion in the case of Officer Wilson in the shooting of Michael Brown (no matter how that rage is expressed) – is all properly self-interested, and is only properly self-interested. Black rage is effective for, and is further justified by, Blacks’ advancement which, of necessity, must culminate in Black privilege. Any state less than Black privilege (which is inherently racism-free) is a state of White privilege (which is inherently racist).

        As a life-long White (and often given to rage), I am offended at the arrogance of a specialist in African American studies, who anoints herself an expert in White rage.

        This comment is 100% sarcasm-free.

    • Read it. Full disclosure: the blogger has been an ass to me personally, and has carried a vendetta for three years now. He used to attack me on other blogs if I offered an opinion. He’s a terrific defense attorney, a good writer, strong in ethics and has an excellent blog. I’m not inclined to give the guy any traffic from here, nor do I care to kick the hornet’s nest that is his personality and cadre of equally nasty pals in the defense bar.

      That said, it’s an amazing post from a defense attorney who often (correctly) accuses prosecutors of bringing cases when they should not. He’s a defense attorney, but in this one case he thinks that a man should be indicted on dicey evidence, because that’s what prosecutors usually do, and finds full disclosure “a lie.” Wow. I see that as bias driven, though I’m sure he doesn’t see it that way.

      Defense attorneys hate cops—sops often lie to make their cases against their (usually guilty) clients stronger, and they are the enemy. So in this one case, he is arguing that the prosecutor should ignore his ethical obligation to only bring a case he believes in good faith that he can prove in court should be left to the jury to sort out, recognizing that an unjust result becomes plausible. Maybe he had different prosecutoral ethics professors than I did—mine, Seymour Glanzer, was awfully good. He said that a prosecutor should never bring such a case, because that’s how innocent people end up convicted. I’ll go with Sy, especially since I’m pretty sure that 99% of the time, when his own clients are facing indictment, the blogger would argue that forcing an indictment on the grand jury when he doesn’t believe a provable;e crime has been committed is unethical. It is an interetsing theory, though: for a prosecutor to do the right thing when he always does the wrong thing is unethical. Hmmmm.

      That was a political blog post. I have never met a defense attorney who wasn’t a down the line liberal Democrat. Essentially he is saying that a cop should be held to a tougher standard than everyone else, and made to stand trial if there is any doubt. I agree with McCulloch that the opposite is true. But then, I don’t think cops are lying racists who are trying to trap my clients.

      Thanks for sharing that. For the reasons I cited, I don’t patronize the blogs of people I have good reason to dislike, which is too bad in his case, because he’s generally very astute.

      And if, by some quirk, he responds here—sorry, I’m not posting it. I apologized to him directly for my mistakes in our little set-to, and he didn’t have the class or the decency to stop his attacks on me. I’ll accept his apology even now, but I know one isn’t coming.

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