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December 2, 2014

Know the Facts--What a Grand Jury Is and Isn't

A grand jury is a proceeding used by a prosecutor to show that probable cause exists to charge someone with committing a crime. It is not a trial of all the evidence. It is not a test of how strong the evidence may be during a trial. It is not–and has never been since the origin of the grand jury centuries ago–what Robert McCullough orchestrated concerning the death of Michael Brown, a de facto trial on the strength of evidence supporting criminal charges or defenses.

The issue for the grand jury to determine is whether the prosecutor presented evidence that supports a reasonable suspicion that (a) an offense occurred, and (b) that someone committed the offense. Reasonable suspicion is a lower standard of proof than preponderance of the evidence (the standard for proving a civil case at trial) and much lower still than beyond a reasonable doubt (the standard for returning a guilty verdict in a criminal case).


A grand jury is not the same as a trial jury because grand jury proceedings serve a wholly different function from criminal trials. The issue during a criminal trial is whether the prosecution can establish the elements of the charged offense(s) beyond a reasonable doubt. Reasonable doubt is not a mere possible or imaginary doubt. It is the doubt that arises from careful consideration of all the evidence and which, after that consideration, causes a fair-minded person to pause and hesitate in the graver transactions of life. If a trial juror has reasonable doubt about whether the prosecution has proved the elements of charged offenses, the juror has a sworn duty to return a verdict of not guilty, no matter what the rest of the world thinks.

A criminal trial is the ONLY proceeding where jurors are supposed to weigh conflicting evidence concerning criminal charges. That is because the issue in a criminal trial is to determine whether there is evidence beyond a reasonable doubt that proves someone guilty of having committed a crime.
Let’s debunk the “conflicting testimony” comments that have been made by Prosecutor McCullough and in various media. Trials always involve conflicting proof and contentions. If a defense attorney isn’t able to dispute something about the evidence a prosecutor presents the defense attorney will attempt to negotiate the best outcome for an accused person short of trial. Criminal trials routinely involve disputed evidence, competing narratives, and challenged assertions.

Grand jury proceedings, on the other hand, are not intended to determine guilt, but to justify charging someone with committing a crime. The reason to submit a case to a grand jury is to get an indictment. If the prosecutor doesn’t think the facts surrounding a case will support charging someone he or she shouldn’t waste the time and energies of citizens who serve on a grand jury by requiring them to consider it.

The proverbial saying that a grand jury will indict a ham sandwich is based on the reality that a prosecutor controls what happens in grand jury proceedings. Witnesses who might offer accounts that would lessen the likelihood of arriving at a finding of probable cause are not presented during grand jury proceedings (remember that the desired outcome is an indictment). And when a potential defendant appears before a grand jury, the prosecutor has a particularly favorable advantage. Witnesses (including potential defendants) may not be assisted by their attorneys during grand jury testimony.

Lawyers and judges familiar with the way criminal cases are handled and tried–and I count myself in that number–immediately recognized what the general public probably didn’t sense when Prosecutor McCullough announced (a) that he would defer the charging decision concerning the homicide (death by another person) of Michael Brown to a grand jury, (b) that he would do so without recommending a specific charge, (c) that Darren Wilson would testify (of course without the presence of his attorney), and finally (d) that McCullough’s office would present the grand jury with all the possible evidence related to the investigation of Brown’s death. The ensuing grand jury proceeding, dragged out over several weeks and marked by a number of curious leaks of what is typically secret information, gave trained legal professionals more clues.

What was supposed to be a secret process focused solely on the proof needed to support charging Darren Wilson with killing Michael Brown was, to many legal professionals, little more than a cynical charade aimed at shielding Wilson from being charged in state court for killing Michael Brown. When McCullough’s office announced that it would release all the grand jury testimony and witness statements to the public after the grand jury reached its decision we knew there would be no indictment. No prosecutor would ever do such a thing unless he or she knew there would not be a trial. To release grand jury material after an indictment but before trial would risk tainting potential jurors, among other things.

I would have disagreed with a decision by Prosecutor McCullough to not charge Darren Wilson with a crime for killing Michael Brown had he announced that decision at the outset. However, the decision whether to charge people with committing crime is reserved to prosecutors. We are obliged to accept those decisions, whether they are to prosecute or not, no matter how much we may disagree with them. And because Mr. McCullough chose to defer the charging decision to the grand jury, we are obliged to accept the decision by the St. Louis County grand jury that no probable cause exists to charge Darren Wilson with any of five possible crimes for killing Michael Brown. I accept that.

What is unacceptable is the charade the world, but especially Michael Brown’s parents, other relatives, and neighbors, have been forced to suffer. Mr. McCullough’s office treated this grand jury proceeding as if Darren Wilson was their client. Witnesses whose accounts supported Wilson’s behavior were questioned in much different ways from those whose accounts pointed toward charging him with killing Brown. And the questioning of Darren Wilson by McCullough’s deputies was remarkably unchallenging. Wilson’s defense team could hardly have asked for better questions from lawyers paid to present the most favorable evidence and arguments for charging Wilson with committing the homicide.

Finally, it is clear to anyone with even a passing understanding of criminal procedure that McCullough’s remark about it would have been unethical to charge Wilson without having all the evidence doesn’t ring true. Prosecutors almost never have all the evidence when they decide whether or not to bring charges. They decide whether to charge based on the evidence they have which suggests they can clear the probable cause bar. Charges are sometimes brought and later abandoned based on evidence developed after the charging decision is made (including unavailability of witnesses and loss or disqualification of desired evidence, among other things).

In the popular movie “For a Few Good Men” Marine Colonel Nathan Jessup (portrayed by actor Jack Nicholson) dramatically challenged Navy Lieutenant Daniel Kaffee (portrayed by Tom Cruise) with this unforgettable statement: “You can’t handle the truth!” Like it or not, the sad truth is that the law enforcement and prosecutorial apparatus in St. Louis County, Missouri clumsily yet doggedly worked to prevent Darren Wilson from facing criminal charges for killing Michael Brown, Jr. People trained in criminal law and procedure recognized that long ago.

Many of us seethed as Darren Wilson received preferential treatment because of his status as a police officer. Known homicide suspects aren’t concealed by the police (concealing evidence, including the identity and whereabouts of a criminal suspect is improper, if not criminal). Darren Wilson’s identity was concealed minutes after he killed Michael Brown. He was protected from being arrested and charged by the very officials empowered to arrest and charge him.

Here’s the truth about which so many people are disturbed, even outraged. Wilson, as Brown’s killer, deserved to be treated fairly–meaning no better or worse than anyone else suspected of killing someone. Brown’s death deserved to be investigated and handled fairly–meaning no better or worse than anyone else shot to death by someone. That could have and should have happened. It didn’t.
Prosecutor McCullough oversaw a travesty of justice that will haunt us all. Handle that truth. Then we should work to make sure that it doesn’t happen again.

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