[cherdano]

Is it unusual for a prosecutor to repeatedly point out weaknesses in his own case in front of a grand jury? (E.g. by pointing out contradictions in witness statements that support guilt, etc.) Or is that unusual since there is no defense attorney present, and the prosecutor would rather test the weakness of his own case now?

[Cthulhu D]

It is highly unusual. It's worth noting that of the 162,000 federal grand juries in 2010, only 11 did not return an indictment, or less than 0.01%.

[kenberg]

Cthulhu D, on 2014-November-25, 18:10, said:

It is highly unusual. It's worth noting that of the 162,000 federal grand juries in 2010, only 11 did not return an indictment, or less than 0.01%.

That is an amazing figure. Not only can a prosecutor indict a ham sandwich, he can indict it when there isn't any ham!

[cherdano]

Cthulhu D, on 2014-November-25, 18:10, said:

It is highly unusual. It's worth noting that of the 162,000 federal grand juries in 2010, only 11 did not return an indictment, or less than 0.01%.

Do you know that because you have seen one on TV, because you have read about them, or because you have actually been involved with/in grand juries?

[aguahombre]

In the U.S., there are basically two ways to get a case to trial --- sometimes even two options in the same jurisdiction --- Grand Jury indictment or simple filing of a case and a preliminary hearing.

In either case, it is the prosecutor's job to present the damning evidence --- not to be objective. The objectivity of the prosecutor goes into determining whether to seek charges at all.

And, this is from experience in a former life with investigation of crimes, presenting them for prosecution, and testifying.

If your question relates to the Ferguson thing, I have some strong opinions from this same standpoint. There is a great big difference between two questions...(one) did the officer commit a criminal act?...(two) should the young man be dead?

Answers: NO.

[Bbradley62]

cherdano, on 2014-November-25, 18:59, said:

Do you know that because you have seen one on TV, because you have read about them, or because you have actually been involved with/in grand juries?

Probably saw the quote here: http://fivethirtyeig...-darren-wilson/ . But, those statistics were for federal grand juries. Was this a federal grand jury, or a county level grand jury?

[PassedOut]

I had an experience with a federal grand jury when I was a student during the time of the Vietnam war. At a public meeting, a man I knew (an admirer of Chairman Mao who considered all of us who disagreed with him to be hopelessly vile) said of LBJ, "I'm going to wring his neck!" A few days later, he was arrested on a charge of threatening the life of the President of the US.

Along with several others who heard the statement, I received a subpoena to testify about the matter before a federal grand jury. This was so far outside my experience that I had no idea what to expect, so I asked an ACLU attorney I knew from Mensa to go with me to Topeka, Kansas where the grand jury was meeting. He couldn't go in to advise me, but he was available for me to talk with privately if anything came up that I wasn't sure about. His last words to me before I went in were, "Answer everything concisely and truthfully and you will be fine."

In the grand jury room, the federal attorney (who I also knew socially because both his wife and my wife were English professors at the same university) asked me about the meeting in question, and, yes, I had indeed heard the statement. Asked whether I had taken the threat seriously, I said no.

Then the questions shifted: "What did your attorney advise you just before you came in?"

"He told me to answer concisely and truthfully."

Long pause, rifling through papers, and then, very sternly: "What did he really advise you?"

Several variations of that question later (to this day I have no idea what the prosecutor was looking for), I was told that I would face prosecution myself if I discussed any aspect of what had transpired there with anyone, including my wife. Then I was excused.

The loud-mouth was indicted and I wound up testifying at two federal trials for the same case. The first time, the Kansas jury was hung with one lone juror holding out for guilty. We didn't expect a retrial, but the US government saw the matter differently. A new federal prosecutor was brought in, and this time the jury voted not guilty unanimously.

A few months later I was listening to a call-in talk show when a caller asked the host, "What ever happened to that guy who threatened the life of the president?"

The host replied, "I think he got probation."

[aguahombre]

Of course, the real answers were: "He didn't (threaten)" and, "He went through Hell for his stupidity." Plus, the Govt. wasted a whole lot of time and money. But talk show hosts are a whole 'nother matter. They are always ready to answer questions for which they have no clue...as am I.

[GreenMan]

Bbradley62, on 2014-November-25, 19:21, said:

Probably saw the quote here: http://fivethirtyeig...-darren-wilson/ . But, those statistics were for federal grand juries. Was this a federal grand jury, or a county level grand jury?

This was not a federal grand jury. I suspect that reliable state-level statistics are scarce, or that site would have reported on them. Different states use grand juries differently -- I've lived in Kansas, where they are quite rare (PassedOut's federal experience notwithstanding), and Texas, where they are common -- so it would be hard to generalize in any event.

[Cthulhu D]

cherdano, on 2014-November-25, 18:59, said:

Do you know that because you have seen one on TV, because you have read about them, or because you have actually been involved with/in grand juries?

For the number, that is drawn from public statistics. For the behaviour of the prosecutor, this has been academically studied. A number of actions are unusual - the number of times the testimony is released are tiny for example. As an Australian, we do not bother with Grand Juries, so I have obviously not been involved.

Edit: Yes, states do different grand juries differently.

It is weird, I do not understand why they even exist. If the prosecutor thinks he has a case, he should prosecute. They are a weird legacy of the era I suspect.

[aguahombre]

Grand Juries are an effective check/balance against the possibility that a single judge presiding over a preliminary hearing will dismiss a case, which IS a case, out of some bias even though the elements of the crime and probable cause exists.

[Cthulhu D]

But that can still happen today. They are supposed to be a check against the government bringing a case without cause - but if the prosecutor wants a case they always get one, as seen by the stats.

[blackshoe]

cherdano, on 2014-November-25, 18:59, said:

Do you know that because you have seen one on TV, because you have read about them, or because you have actually been involved with/in grand juries?

I think the best way to word this question is simply "source, please?"

[blackshoe]

Bbradley62, on 2014-November-25, 19:21, said:

Probably saw the quote here: http://fivethirtyeig...-darren-wilson/ . But, those statistics were for federal grand juries. Was this a federal grand jury, or a county level grand jury?

My understanding is that this was not a federal grand jury, based on my understanding that the officer is still under investigation by, and may yet be charged by, the feds.

[Cthulhu D]

blackshoe, on 2014-November-26, 00:20, said:

My understanding is that this was not a federal grand jury, based on my understanding that the officer is still under investigation by, and may yet be charged by, the feds.

Do the feds actually have jurisdiction for the shooting?

Edit: Related note - why the hell was he even presenting exculpatory evidence? Is that even a requirement in Missouri? I don't think it is?

[aguahombre]

What happens in a use-of-force situation with an officer involved is this.....If the Feds (and the politicos in Federal government) are unhappy with the outcome of State/local criminal proceedings, the officers are then charged with a different crime. ----- violation of civil rights, a Federal offense. It is like a double-shot people take at the Bridge table. Even if there has been a trial and acquittal, they can beat Double Jeopardy this way.

[kenrexford]

Disclaimer, I am a criminal defense lawyer.

A few points. First, in State prosecutions, my own experience is that violence cases more frequently than others end up no bill. Too much reliance on citizen testimony in chaos.

Second, violence cases end up with no charge more often than others because of prosecution discretion.

Third, a prosecutor is ethically bound, subject to discipline, to seek justice, not just to prosecute.

Fourth, high profile cases get high attention because they are high profile. A prosecutor will present a case that he would have declined to even pursue if the case is high profile. Cop cases are often this type. Without media, the case strength might be such that a parallel involving citizens might not even be prosecuted. But, profile induces presentation. If the prosecution doesn't think that the case is strong enough, the reasonable move is exhaustive balanced presentment.

[kenberg]

I appreciate the above response from KenR, it is sort of what I would expect but, in my case, this is based on virtually no experience.

As to the feds, I think, again based on my vast lack of direct experience, that it goes something like this:

Federal prosecution of Wilson won't happen. To prosecute him, they would have to make a convincing case that he intended to vilate Brwon's civil rights. If Wilson just lost his head through fear, that would not be enough for a case under federal civil rights law.

The feds are, I understand, also looking at the whole structure. I imagine this includes the grand jury presentation. I am not sure what they might do if they came to decide that the grand jury presentation was deceptively staged to get Wilson off, but in theory I suppose that they could do this. Even if so, I doubt that they could successfully prosecute Wilson. Unlike KenR, and maybe other posters, my legal training is zip. But I think that the feds would have to show some planned violation of Brown's civil rights.


The facts matter here. I don't see what the point would be of indicting Wilson if the facts support his version of events. The grand jury apparently decided that they did. It's fair to ask if the prosecutor, or State's Attorney, or whatever he was, intentionally scuttled this. I doubt that is true, but it is fair to ask if it is true. Lacking that, I think the case is over.

[cherdano]

kenrexford, on 2014-November-26, 06:23, said:

Fourth, high profile cases get high attention because they are high profile. A prosecutor will present a case that he would have declined to even pursue if the case is high profile. Cop cases are often this type. Without media, the case strength might be such that a parallel involving citizens might not even be prosecuted. But, profile induces presentation. If the prosecution doesn't think that the case is strong enough, the reasonable move is exhaustive balanced presentment.

Are you implying that if the Ferguson case would not have been such high profile, the prosecutor would not have even brought it in front of a grand jury?

My own opinions:

• I didn't spend a lot of time reading about the evidence, but from I have read it seemed extremely unlikely that Wilson could ever get convicted - Brown was likely approaching him as the deadly shots were fired, both based on multiple witnesses and the forensic evidence.
  
• Having said that, Wilson's testimony raised enough questions. A lot of what he said is eerily close to the stereotype of the giant angry negro, and quite a bit of what he said is contradicted by evidence. (His injuries were not as major as they would have to be according to his story, and according to his account Brown died 20-30 feet away from the police car, instead of 150.) The prosecutors did not press him on any of that.
  
• The most likely explanation for that is that they never thought they had a case.
  
• Probably Wilson was legally justified to shoot Brown (if he indeed was approaching him again). However, any semi-competent cop has no reason at all to bring himself into a situation where he has to kill Brown 150 feet away from his car.

But I'd be interested to hear more from people who have read more about the case than I, or who have direct experience with such prosecutions.

[kenrexford]

cherdano, on 2014-November-26, 08:02, said:

Are you implying that if the Ferguson case would not have been such high profile, the prosecutor would not have even brought it in front of a grand jury?

My own opinions:

• I didn't spend a lot of time reading about the evidence, but from I have read it seemed extremely unlikely that Wilson could ever get convicted - Brown was likely approaching him as the deadly shots were fired, both based on multiple witnesses and the forensic evidence.
• Having said that, Wilson's testimony raised enough questions. A lot of what he said is eerily close to the stereotype of the giant angry negro, and quite a bit of what he said is contradicted by evidence. (His injuries were not as major as they would have to be according to his story, and according to his account Brown died 20-30 feet away from the police car, instead of 150.) The prosecutors did not press him on any of that.
• The most likely explanation for that is that they never thought they had a case.
• Probably Wilson was legally justified to shoot Brown (if he indeed was approaching him again). However, any semi-competent cop has no reason at all to bring himself into a situation where he has to kill Brown 150 feet away from his car.

But I'd be interested to hear more from people who have read more about the case than I, or who have direct experience with such prosecutions.

Yes, maybe. I will even state it plainly. Prosecutors often decline to prosecute in felony cases if the case is too weak to envision a resulting conviction. They are too overworked to merit energy on hopeless cases. That said, prosecutors also will occasionally send violence and death-resulting cases to grand jury anyway, even if they do not believe in the case, because the seriousness of the case warrants consideration anyway, expecting a no bill.




What is unique about this case is that the normal process was not followed, but not in the way suggested by many. What typically would happen might be a decision to not charge. If a decision was made to charge, or to at least present the case, a relatively short presentation would occur. This case resulted in an extremely lengthy presentation of evidence to the grand jury in favor of indictment, more than you would ever in reality see. (As an example, in my home town, one week and one prosecutor is enough for about 50 indictments. That's about 10 indictments per day. Thus, most cases have about 1 hour (if that) of grand jury evidence presented. I bet it is more like 30 minutes.) When the prosecutor in Ferguson presented as much evidence as you might see in a real trial (meaning, a real world murder trial that is not high publicity and hence months long), ethical considerations merited a fair balancing with "defense" evidence added.