The grand jury process is set up to allow the prosecuting attorney to present a case for indictment in secrecy and without defense. Almost never does the accused attend (let alone testify) and no lawyer from the defense is allowed to attend. Regular trial (petit jury)rules of evidence and testimony, including the defendant’s right to present exculpatory evidence, are not observed and the process is not adversarial (since only the prosecution’s case for indictment is presented), so no judge is needed to referee and no judge presides over grand jury hearings. It is entirely the prosecution’s grand jury in which the prosecutor is free to act as the advocate for the people of the state and the victim. Very often the accused are not even aware that they’re the target of a grand jury proceeding until they are indicted.
The threshold for indictment is the low bar of probability rather than proof beyond a reasonable doubt because the grand jury does not determine guilt or innocence; they just get a yay or nay to charge the accused with a crime or crimes which are almost always clearly specified by the prosecutor[1]. The tradeoff in our system is that the accused (there is no “defendant” in a grand jury proceeding) is not at peril of conviction by a grand jury and that, once an indictment is handed down, the fullness of facts (including conflicting witness accounts and exculpatory evidence) must be presented and tried by a jury in an open, public, adversarial proceeding (trial) where a judge presides to enforce rules of evidence and testimony. It is worth noting that the prosecution is only legally compelled to present all records of conflicting testimony and exculpatory evidence gathered during investigation IF and AFTER a grand jury has handed down a “true bill” of indictment; such countervailing evidence is provided to the defense to use as they think will best benefit the defendant at trial.
The reason the grand jury process is secret and generally sealed is precisely because it is intentionally a one-sided in favor of indictment (in federal cases, for example, according to Justice Department figures, U.S. attorneys prosecuted 162,000 cases in 2010 and grand juries declined to indict in 11 of them– ELEVEN out of 162, 000) and the “facts” have not yet been properly determined.[2]
All these institutional norms and rules are more than “technicalities” or legal “niceties”; they are the substance of due process–as is EQUAL PROTECTION. McCulloch’s treatment of the Wilson case will cause defense lawyers in Missouri to insist on equal treatment for THEIR defendants. Defense attorneys and civil liberties advocates have for years been fighting tooth and nail to reform the grand jury process to allow all grand jury targets all the stuff McCulloch provided on his own for Wilson. And DAs have fought just as hard AGAINST bringing more balance and more rights of the accused into the grand jury process. McCulloch’s behavior in such a nationally high profile case has put a HUGE dent in the DAs’ side in the battle for reform. (Note: Quietly, while few are paying attention, DAs have always provided unequal protection of law when police are accused of crimes.)
Missouri’s law is not substantially different from federal law of the laws of most states that use a grand jury for preliminary hearings. Prosecutors are always “allowed” to bring in evidence or testimony that would tend to exculpate the accused. But they don’t actually ever do that; let’s see if we can guess why…
THEY’RE PROSECUTORS. They are supposed to show the grand jury that there is enough evidence for an actual trial, not that there isn’t. Bob McCulloch’s standard practice with the normal targets of grand jury proceedings (people some would call “thugs” and the Constitution calls “the accused”–as in “rights of the accused”) is no different from any other DA: empanel the grand jury, show the witness testimony and other bits of evidence tying the accused to the crime, ignore witness discrepancies (leave that for the defense attorney to cover at trial) name the specific crime for which the prosecution is seeking indictment. That’s how and why grand juries do indict in well over 95% of cases they hear.
In the long run, while civil libertarians, like the people Ferguson, will always feel rage about it, they may end up very happy about the unintended consequences of McCulloch’s corrupt manipulation of the Grand Jury process, The people now high-fiving each other over Wilson not getting indicted will not.
McCulloch’s handling of the case is critically important because “due process” for whoever is accused of a crime in Ferguson this coming week or the next, or ever after, should get the same process that Wilson got. Else, no equal protection thus no due process. (Those terms might sound familiar since they come from the Constitution, which—last time I heard—American conservatives claim they take very seriously.)
More than a few social media posts and comment threads on mainstream blogs indicate that a lot of folks don’t care to engage the issues of “due process” and “equal protection” as they relate to the grand jury decision in St. Louis County.
Many seem to have some chip on their shoulder about who got shot somewhere else and didn’t get media coverage—purportedly because America doesn’t care about white people enough. Such folks strenuously ignore the very real issue that—whatever one thinks s/he knows about what happened in Ferguson the day that Michael Brown was killed—McCulloch’s handling of the Grand Jury was outrageously inconsistent with how he and his office handle criminal allegations every day.
The CRUCIAL question remains, WHY? WHY did Derren Wilson get special, privileged, unequal protection? If his treatment was just, then why are not all accused in St. Louis County afforded the same process. If the procedures were tipped because the prosecutor has to work with police officers and depends on their good will and cannot afford to piss off the FOP (or because he decided–without a trial–that Wilson only shot a thug who dared to take a punch at a cop and call him a pussy and was therefore justified in killing him) or for any other reason, then the standard of equal protection is violated and all other defendants in McCulloch’s jurisdiction have been denied due process.
The coup de grâce of McCulloch’s sham Justice Theater is McCulloch letting loose to prosecute the victim, Michael Brown, on national TV and spew unsubstantiated “evidence” against him in a vile press conference where Brown’s corpse could not face it’s accusers and no attorney could defend him from that cowardly attack by a thug prosecutor gone feral.
So, where does due process and equal protection of the law now stand in St. Louis County?
[1] Not, as in the case of Wilson, left up to the grand jury to figure out for themselves.
[2] Therefore, braying rightwing talking points notwithstanding, we do not know if there were a “slew of lying witnesses”, nor does the grand jury or the slimy DA, McCulloch, because the testimony of witnesses HAS NOT BEEN TRIED. Nor is the Derren Wilson case “over”: A “no true bill” finding by the GJ is NOT an acquittal and double jeopardy DOES NOT attach to a GJ proceeding since the accused was never in peril of conviction, has never been TRIED. Thus the non-indictment holds no legal meaning with regard to trying the case. Though it will never happen in the corrupt criminal justice regime in place in Ferguson and Missouri, the state is free to empanel a new GJ or go to a judge and seek a direct indictment without a GJ. So, in terms of law and justice, it is not over at all.
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