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AP U.S. Government

December 1, 2014

A grand jury hearing is not a trial.

A prosecutor works with a grand jury to decide whether to bring criminal charges (an indictment) against a potential defendant.

One of the first procedures in a criminal trial, if used. Preliminary hearings may be used

prior to criminal trials, instead of grand juries.

Both are meant to determine whether there is enough evidence, probable cause, to indict a criminal suspect.

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More relaxed than normal court room proceedings.

No judge present, frequently no lawyers except for the prosecutor.

The prosecutor explains the law to the jury identifies the charges s/he is seeking works with the grand jury to gather

evidence and hear testimony

Normal courtroom rules of evidence, exhibits and other testimony do not apply a grand jury has broad power to see and

hear almost anything they would like.

Grand jury proceedings are kept in strict confidence. To encourage witnesses to speak freely

and without fear of retaliation. To protect the potential defendant's

reputation in case the jury does not decide to indict.

Grand juries do not need a unanimous decision supermajority of 2/3 or 3/4 agreement

(depending on the jurisdiction).

If a grand jury does not choose to indict, a prosecutor may still bring the defendant to trial. The grand jury proceedings are usually a

test run for prosecutors in making the decision to bring the case.

If the grand jury chooses to indict, the trial will most likely begin faster. Without a grand jury indictment, the

prosecutor has to demonstrate to the trial judge that there is enough evidence to continue with the case.

With a grand jury indictment, the prosecutor can skip that step and proceed directly to trial.

Grand Juries do NOT determine guilt or innocence.

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Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years: “It is the grand jury’s function not ‘to

enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer. . . As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.” [emphasis added]

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Robert McCullough, the St. Louis County prosecutor,

allowed Wilson to testify for hours before the grand jury police officers are trained witnesses

presented them with all exculpatory evidence available including contradictory witnesses

in his presentation to the press of the grand jury decision, never once mentioned that Michael Brown was unarmed

Other irregularities: McCulloch did not recommend any

charges to the grand jury. Prosecutors always do so, and

participate with the jury to build up the evidence to support the charges.

McCulloch often was not present.

Took the highly unusual course of presenting all the evidence to the jurors and leaving them to make sense of it. Political cover for McCulloch? Regardless of outcome, he can point to

the grand jury.

Wilson was allowed to process his own gun as evidence.

Wilson was allowed to wash off blood before being processed/questioned.

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“And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest.” Jury instruction

The governing law, established by the Supreme Court in the 1980s, allows police officers to shoot to kill as long as they believe their life is in imminent danger — which Wilson has said he believes was the case.

McCullough would not disclose whether the grand jury was unanimous.

He doesn’t have to.

Missouri state law

requires 9 of 12 votes to indict.

prohibits grand jurors from disclosing how they voted.

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Concerns about McCulloch’s impartiality: His father was a police officer killed

in a shootout with a black suspect

several of his family members are, or were, police officers

23-year record at least a dozen fatal shootings by police

in his jurisdiction

has not prosecuted a single police shooting

At least four times he presented evidence to a grand jury but didn’t get an indictment.

An online petition calling for McCulloch to recuse himself gathered 70,000 signatures.

A non-indictment by a grand jury doesn't trigger double jeopardy. There has been no trial.

Another grand jury could be convened to hear the evidence. Governor Jay Nixon has said he will not

appoint a special prosecutor to present evidence to a new grand jury.

Attorney General Eric Holder has announced that that Justice Department’s investigation into the shooting remains “ongoing,” “thorough,” and “independent.”

Wilson could be charged with a federal crime under 18 U.S.C. § 242, which makes it a crime for government officers to deprive citizens of constitutional rights. Also not precluded by double jeopardy. The legal standard for that conviction is very

high – requires evidence of willful intention to deprive a person of their rights.

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McCulloch has released the evidence collected in the case

to give the public a chance to evaluate

What impact on possibility of a special prosecutor/second grand jury hearing?

Federal Grand Juries almost always return an indictment:

Of 160,000 cases against defendants in 2009-2010 grand juries only voted not to indict in 11.

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No good data on officer-involved killings. Police departments are not required to

report.

Newspaper accounts suggest grand juries generally do not indict law-enforcement officials. Houston Chronicle investigation: “police

have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years.

Harris County, Texas (Houston): grand juries haven’t indicted a Houston police officer since 2004

Dallas: grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment.

Bowling Green State University criminologist Philip Stinson: officers are rarely charged in on-duty killings, via grand jury indictments or other means.

At least three possible explanations why grand juries less likely to indict police officers: juror bias: maybe jurors tend to trust

police officers and believe their decisions to use violence are justified, despite the evidence.

prosecutorial bias: prosecutors depend on police as they work on criminal cases – do they maybe tend to present a weaker case against officers, whether consciously or unconsciously?

certainty v. pressure: ordinarily, prosecutors only bring a case if

they think they can get an indictment in high-profile cases such as police

shootings, they may feel public pressure to bring charges even if they think they have a weak case.

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Probable Cause a relatively low standard of proof, used

to determine whether a search, or an arrest, or a grand jury indictment is warranted.

Preponderance of the evidence The standard is met if the proposition is

more likely to be true than not true.

Beyond reasonable doubt highest standard used as the burden of

proof in Anglo-American jurisprudence and typically only applies in criminal proceedings.

evidence establishes a particular point to a moral certainty which precludes the existence of any reasonable alternatives.

It does not mean that no doubt exists.

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The federal government and national research groups keep mountains of data and statistics how many people were victims of

unprovoked shark attacks (53 in 2013)

number of hogs and pigs living on farms in the U.S. (upwards of 64,000,000 according to 2010 numbers)

how many officers killed in the line of duty (48 in 2012 - 44 of them with firearms; 27 in 2013)

how many people shot, or killed, by law enforcement officers (unknown – only 750 of 17,000 jurisdictions reported)

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17,000 law enforcement agencies self-report officer-involved shootings as part of the FBI’s annual data on “justifiable homicides” by law enforcement.

Information available is from about 750 law enforcement agencies – average of about 400 “justifiable homicides” by police officers each year.

Independent trackers, primarily journalists and academics who study criminal justice, insist the accurate number of people shot and killed by police officers each year is consistently upwards of 1,000 each year.

As of September 1, according to one reporter’s estimate, 83 other people had been killed by police officers in the United States since Michael Brown’s death.

The most detailed analysis of police shootings to date was conducted by Jim Fisher, a former FBI agent and criminal justice professor who now authors true crime books.

In 2011, Fisher scoured the Internet several times a day every day, compiling a database of every officer-involved shooting he could find. Ultimately, he tracked 1,146 shootings by police officers, 607 of them fatal shootings.

USA Today reported that on average there were 96 cases of a white police officer killing a black person each year between 2006 and 2012, based on justifiable homicides reported to the FBI by local police.

In Chicago, an examination of media accounts shows that only one shooting out of the 84 fatal police shootings occurred since 2000 has been found unjustified.

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Intentionally breaking a rule seen to be unjust.

A walkout can mean the act of leaving a place of work, school, a meeting, a company, or an organization, especially if meant as an expression of protest or disapproval.

It’s cold out there. Dress warmly.