The Ferguson Model of Grand Jury Love

Embracing the Ferguson model, prosecutors will hereinafter represent the defendant in the grand jury. That is all.

Twit, 26 November, 2014, 9:11 a.m.

There was the  process.  There was the evidence. There was, unexpectedly, a synergy of the two.  It was not only theatre to appease the critical demands of the angry locals, but one carefully orchestrated to make sure that there would be standing ovation at the end.

Many have scratched the surface of the grand jury proceeding that returned no indictment of Darren Wilson for the killing of Michael Brown, concluding that it was a sham, never meant to indict but to create the show that quiets the maddening crowd. They think this is an epiphany.

Others have noted that this isn’t lawful, as the prosecutor can’t present a case to the grand jury in which he doesn’t believe, and to do so only to silence demands is unethical (they call it unlawful, but they must be forgiven such minor imprecision). As was already noted, we are a lazy and ignorant people when it comes to the processes of government.  Perhaps naïve should be added to the list.

Much of what our government does serves the appearance of lawfulness without its substance.  This is the Lie, and still the groundlings can’t see it.  Yes, it was a show. Yes, it was improper. Yes, it was done to quiet demands for blood. Yes, this is all very wrong. So what? What the hell do you think you can do about it? They play a game that perpetuates the status quo, and the handful of you who realize it’s wrong think you’ve discovered gold. Tomorrow, you will go back to playing video games and care nothing about the next wrong. Hell, you wouldn’t even know it happened if it smacked you upside the head.

If you had the capacity to dig deeper, you would realize that this is mundane manipulation. It happens all the time, but you’re just too lazy and ignorant to realize it.  The one time you stumble upon it, you’re shocked and outraged. This is WRONG!, you scream.  Of course it is, and it’s wrong every time it happens, even if you’ve never been bothered to notice it before. Welcome to the club, kids.  This battle has been going on forever. That was the whooshing sound you heard.

Is there a takeaway here that can make you feel better, make you feel that there is something to be gained from this unpleasant experience you’ve endured?  Some have argued that we should get rid of the grand jury process, a worthless sham. The elimination of this layer of process would serve no purpose. Sure, a prosecutor may be able to indict a ham sandwich except when the ham is a cop in Ferguson, but it’s still an additional hurdle.

But what non-lawyers don’t realize is that it generates testimony that can be used to impeach at trial. and sometimes, rarely but sometimes, it actually works and a non-cop defendant walks free. There’s no downside to keeping the process, even if the upside isn’t huge.  On a deeper level, this applies to all of the system; it’s the nation’s longest running dog and pony show, but the point of fighting is for those rare, occasional successes. If we didn’t fight it, there would be no wins at all. A few are better than none.

In an op-ed in the Boston Globe, First Amendment lawyer Harvey Silverglate of Three Felonies a Day fame, tries his optimistic best to turn this widely shared experience into something positive.

While the grand jury’s decision not to indict may, to some, taste of injustice in this particular case, one should always be wary of wishing for a more zealous prosecutorial approach that infantilizes citizens and robs them of their rightful role in deciding who should, and should not, be charged with serious felonies.

This is a nod to the occasional win, the hopeful potential that the grand jury could, in a better world, serve a higher purpose than rubber stamping the outcome sought by a prosecutor.  Rather than wallow in cynicism and give up hope, we should strive for a better system.

But Harvey then crosses the border between optimism and irrational exuberance:

There are two lessons to be learned from Ferguson, if we are wise enough to understand and act on them.

First, grand juries should be relied on more, not less, especially in cases that arouse popular suspicion, passion or cynicism. Grand jury reforms should be enacted, on both the state and federal level, requiring that grand juries proceed in much the manner that McCulloch ran the St. Louis County grand jury, with an impartial prosecutor, the lawyer representing the target if the lawyer requests to be present, and with full transparency at the end of the process.

Second, the race problems that permeate so many police-citizen interactions nationwide require us to closely examine these systems, and introduce the necessary reforms and remedies.

Much as I usually agree with Harvey, the notion that the grand jury process for non-cops would ever be reformed such as to resemble what happened in Ferguson is outlandish. It’s impractical, as the time that would be required to put every witness in every case into the grand jury, could never happen.  The country refuses to fund indigent defense, which is constitutionally mandated, and the cost of such grand jury reform would be astronomical. Not a chance in the world, particularly since it’s not constitutionally required.

But I also can’t share Harvey’s rosy view of the internal mechanics of Ferguson’s presentment. There was no “impartial prosecutor,” but one who brutally challenged inculpatory witnesses while spoon-feeding answers and excuses to the defendant. As the grand jury transcripts reveal, not only was this a stagecraft, but not even good stagecraft.

I’ve shared Harvey’s point in the past, often with regard to light sentences imposed on favored defendants, as not being targets of derision, but models for all sentences. I can’t share it this time.  Not only is there no chance that the grand jury proceeding provided Darren Wilson will serve as model for reform for others, but it’s impossible to overlook the fact that there was nothing about it, not even the self-serving disclosure of transcripts and exhibits, that was untainted.

Like Harvey, I too would love to live in a nation that truly adhered to constitutional principles, including fundamental fairness in the grand jury process that served a higher purpose than handing prosecutors indictments upon demand.  If there was any chance, any chance at all, that Ferguson might open the eyes of Americans to grand jury abuses such that meaningful reform might come, I would join Harvey in his plea for understanding.

But neither you nor I, nor any non-cop, will ever see the day when we are treated like Darren Wilson in the grand jury.  And DA Bob McCulloch’s handling of this indictment deserves no better than cynical derision, not even if we cherry-pick the parts we like and pretend the presentment wasn’t a deliberate sham.  There is a time to make the best of a bad situation, and then there is a time to be realistic so that the bad situation doesn’t continue to recur. I doubt we can achieve the latter, but if we can, that alone would prove huge.

9 thoughts on “The Ferguson Model of Grand Jury Love

  1. Fubar

    Quoting Harvey Silvergate:

    Grand jury reforms should be enacted, on both the state and federal level, requiring that grand juries proceed in much the manner that McCulloch ran the St. Louis County grand jury, with an impartial prosecutor, the lawyer representing the target if the lawyer requests to be present, and with full transparency at the end of the process.

    [ This appears to be a half-vast retro-fit upon the grand jury of the preliminary hearing to determine probable cause proceed to trial. It appears to replace the judge of the prelim partly with a grand jury and partly with a prosecutor.

    Since no prosecutor is impartial, and grand jurors wouldn’t know rules of evidence, that procedural chimera would be more ghastly than a grand jury already is. If for no other reason than the defense might be forced to raise legal issues too soon, without an actual judge to adjudicate them.

    At least in states which require or permit them, preliminary hearings are necessarily better than that by existing law.
    ]

  2. Daniel

    “There’s no downside to keeping the process, even if the upside isn’t huge.”

    You are so busy groveling for scarps at the table of power you allow your perspective as a defense lawyer to blind you to a larger truth. Whatever the merits of the grand jury as legal tool it has huge demerits as a cultural tool. If one accepts the premise that the primary reason for the adversarial system is that it is the best way to elucidate the truth upon which justice is founded then the grand jury should be persona non grata as a political matter.

    The problem with the grand jury is that it is nothing but a public relations tool dressed up in legal ceremony. I am actually astonished that you think that the simple fact that occasionally this public relations ceremony produces a nice little morsel for the defense bar covers up all its other ills. You cannot complain with a straight face that Americans are lazy and ignorant and yet at the same time approve of what you describe as “the nation’s longest running dog and pony show.”

    Approving of the nation’s circuses just because it occasionally gives you a slice of bread is piggish. I thought you were better than that.

    1. SHG Post author

      Sorry that I’ve been such a personal disappointment to you. Here’s my reality: real people come before a court every day, and those are the ones we fight to save. You can hate the system all you want (and with plenty of good reason), but in the meantime, we have real lives to defend.

      Should the day come that American society is ready to recreate the system into something better, then we can argue over what that animal might be. I have doubts that it would ever happen, and even if it did, whether it would, in fact, be better. A lot of the ideas people have seem great from the outside, but are idealistic and simplistic. So for now, at least, I’m going to support whatever saves actual human lives. You can rail for the “cause,” whatever that may be (got a better idea?), but I can’t afford to be so cavalier when there are actual human beings who suffer.

      The grand jury sucks, but the absence of a grand jury just places the charging decisions entirely in the hands of prosecutors without any potential benefit to society. It may not be much, but it’s something. You got nothing.

  3. Ken Mackenzie

    A working “grand jury” system is possible. We had a good one in Queensland until 2010. It was before a Magistrate not a jury, but the defence could require any of the prosecution witnesses to attend, give evidence-in-chief and be cross-examined. Both sides were thus much better prepared for trial, Magistrates threw out the most hopeless cases, and prosecutors were forced to confront reality and take a sensible view in others. The system of public defenders provided lawyers at this stage to those charged with the most serious offences.

    It does cost money, but there are savings to be had later in the process. It vastly improves the justice of the process. A crisis of public confidence, like Ferguson but more sustained, could create the political will to reform the process.

    1. SHG Post author

      If judges were more inclined to skepticism and less inclined to rubber stamp prosecutorial, and their pet grand jury, findings, it would bring a huge measure of improvement to the system. Right, judges? Judges?

  4. Piedmont

    Good point, Daniel. In my state, a defendant can be directly indicted without a preliminary hearing and a prosecutor may charge by information, skipping the grand jury. I haven’t figured out why either is done, except to reassure the prosecutor that he hasn’t missed some glaringly obvious flaw (or to allow a case to be dismissed outside of a court of record)

    1. SHG Post author

      This would have been far more useful had you replied to Daniel rather than starting a new thread. Are blog comments really that hard to do?

      You might also want to explain to Daniel that your perspective is that of a prosecutor, so when you agree with Daniel, it’s because his fantasy serves the best interests of the prosecution by allowing prosecution without any exposure or downside.

  5. Andrew

    Sorry if this is stupid or if I missed something. The grand jury transcript indicates that Wilson had counsel, of course. Maybe it’s just stubbornness on the part of the client, I don’t know, but why would Wilson’s counsel allow him to testify at a grand jury proceeding? Obviously, it worked out for him here, but I can’t imagine many circumstances where it would make sense for the accused to testify at his own grand jury proceeding.

    1. SHG Post author

      Someone else asked if I thought this was a “conspiracy” between Wilson and McCulloch. I don’t, but I definitely think Wilson got the wink, and it’s hardly a stretch for Wilson (and counsel) to believe with strong certainty that he would be a welcome witness before the grand jury. Or to put it another way, if there was ever anyone who should testify before the grand jury, Wilson was it.

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