Call for Sanity

There’s No Conspiracy in Ferguson’s Secret Jury

The Founders put the grand jury process into the hands of citizens to avoid show trials and overzealous prosecutors. We need to let that process work in Ferguson.

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The news analysis of the grand jury process in Ferguson, Missouri’s controversial Michael Brown shooting has been disturbingly simplistic and inaccurate. Viewers are subjected to ill-informed “experts” who have never even seen the inside of a grand jury room, hinting darkly of a “conspiracy” of secrecy, of a “lack of transparency” and of unacceptable “optics” in the grand jury investigation into the shooting death of an unarmed 18-year-old black youth by a white police officer.

Those who claim a problem with the grand jury process can squarely place the blame on George Washington, Benjamin Franklin, Thomas Jefferson, and the other Founders responsible for placing it in the Bill of Rights. In fact, it was one of the least controversial parts of the Constitution garnering virtually unanimous support at the Constitutional Convention. All agreed that panels of ordinary citizens should investigate and screen all serious federal criminal cases as a protection against overly aggressive prosecutors. Eventually, all 50 American states would embrace some form of the federal grand jury concept though employing the panels less frequently than the feds.

The grand jury’s strict secrecy rules were designed to encourage all witnesses with knowledge to testify openly and honestly without fear of ridicule or community scorn. The proceeding is not intended to be a public spectacle or even a much-needed forum to expose the often unfair treatment of black youth by the police. Court cases are flawed devices to sort out and solve such important social problems. The grand jury’s only duty is to sift the evidence to find the truth about the tragic encounter between Officer Darren Wilson and Michael Brown. If the evidence provides reasonable cause to believe a crime was committed, the grand jurors’ oath requires a vote to indict.

On the other hand, if Officer Wilson is found to have acted lawfully in his use of deadly force, then he deserves a dismissal and the right to salvage whatever scraps of a normal life will be left for him when the case is over. Only the facts of this case are relevant. The grand jury is not charged with resolving the issue of police brutality or even sending a message about it.

The law authorizes police officers to use deadly physical force in a wider variety of situations than permitted for ordinary citizens. It can be used not only in self-defense but also in certain cases to subdue a fleeing felon who poses a danger to the officer or the public. A police officer has no duty to retreat and can stand his ground even though an encounter with a potentially dangerous suspect might be avoided by backing off and waiting for help. The prosecutor will provide instructions on these and other important legal principles before the grand jury votes to indict or return “No True Bill,” precluding a trial.

Though the grand jury is an imperfect forum for resolving social issues, it works very well in finding truth. Having presented many cases to the grand jury myself, I know that testing the claimed observations of a witness under oath often results in a very different and more accurate recitation of facts than statements made in public in the heated aftermath of a serious crime.

In a high-profile matter like the Brown case, the prospect of a witness getting his or her name and image in the newspaper or on TV by embellishing the story is for some an irresistible temptation. Repeating an embellished story before a grand jury while under oath is an entirely different matter. The grand jury inquiry affords opportunity to test accuracy of witness accounts. If the witness did in fact witness such a terrible crime, the testimony will survive in the crucible of cross-examination. If true, it will have a discernable consistency with the forensic evidence. Was the witness really in the time and place to have made the claimed observations? Was the suspect raising his hands in a surrender gesture or could the arm placement have been viewed from a different angle as an aggressive “tackle” gesture? How close was Michael Brown to Officer Wilson when he turned in Wilson’s direction? How much time did the officer have to react? Do the varied autopsy reports support or contradict witness testimony? Did Michael Brown have a motive to violently attack the officer?

Experienced prosecutors can recount case after case of witnesses recanting or altering colorful public statements under cross-examination. Witnesses also make unintentional errors sometimes based on what they have heard from others. Once again focused inquiry by the prosecutor and even the grand jurors who have the right to ask their own questions, can clarify ambiguous or inaccurate points.

The grand jury’s subpoena power can be used as a powerful investigative tool to gather additional evidence not available in the initial police investigation. The grand jurors can force the prosecutor to produce additional witnesses and reportedly did so, seeking the testimony of the Brown family’s medical expert, Dr. Michael Baden.

Had the St. Louis prosecutor proceeded by summary arrest and a probable cause hearing before a single judge, the resulting judicial decision, whether ordering dismissal or a murder trial, would undoubtedly have been subjected to criticism based upon the race or reputation of the judge. The necessarily streamlined presentation of evidence at a probable cause hearing would leave the public dissatisfied with the fairness of the process.

In this case, the Founders had the right idea. A panel of citizens will decide the fate of Officer Wilson rather than law-enforcement professionals or a lone judge. The citizenry authorize police officers to strap on a weapon every working day and travel in harm’s way to protect the public and enforce the law. When it’s time to indict an officer for abuse of this sacred trust, the citizens of the grand jury should make this sensitive decision. Ethical prosecutors maintain a neutral stance in such important cases making sure that the grand jury gets the evidence and law it requires to do justice. The public should keep faith in a system that isn’t perfect but seems to work better than any other.