by Jaired Hall, Esquire
I want to look more into the Missouri Statutes that apply specifically and exclusively to law enforcement officers and their use of force, but in the meantime, here are some more thoughts about the grand jury process and what happened in Ferguson.
I find the whole grand jury process interesting.
In my experience, prosecutor’s use them to pretty much get whatever charges they want straight to the trial phase of the court system.
99% (or thereabouts) of criminal defendants can’t afford to fight a case to trial, and therefore, it’s easy for a prosecutor to pay little attention to how good or bad the case is. Once he shoves through an indictment, the next most likely thing he’ll get is a plea deal.
And by the way, I’m sitting here in Texas County where the 99% of people I’m talking about who end up pleading out because they can’t afford a trial are white people.
I was pleasantly surprised one day a year or so ago when a prosecutor from a nearby county called me and said, “I understand you’re representing the accused. We’re doing a grand jury over here. If you have any evidence that you believe the jury should be aware of, I’d be happy to present it to them along with the other evidence. I gave him some stuff, and the indictment that came down was for a misdemeanor (which ended up getting thrown out shortly thereafter). The prosecutor was fair, and when he could have gotten multiple felonies, he came out with a misdemeanor.
I think there is no question that the prosecutor in the Michael Brown case could have presented the evidence in a way that would easily have resulted in an indictment for first degree murder.
I think it’s also pretty likely that a trial would have resulted in a not guilty verdict.
A prosecutor’s job isn’t to make a victim’s family happy by prosecuting a legally unwinable case. A prosecutor’s job is to win cases against those who have committed a crime. An affirmative defense isn’t *just* something the defendant brings forward — the defendant brings it forward to convince the jury that *no crime* was committed.
A prosecutor who has a really weak case will not even file. This prosecutor may have considered the case a clear loser, but for the sake of exhaustive fairness and justice, he presented very thorough evidence to a grand jury.
Here’s an interesting article: http://www.washingtontimes.com/news/2014/nov/25/legal-scholars-praise-ferguson-grand-jury-fairness/
What should a prosecutor try to be accomplishing with a grand jury?
If a prosecutor has a really bad case, he should just decline to file charges at all, and not even seek an indictment.
But is that even an option in a high profile case? In a high profile case, the prosecutor is not, in my opinion, suddenly mandated to take a case all the way to the trial stage. For one thing, no one likes to lose a big trial. For another thing, I don’t think it’s ethical to make someone go through a murder trial (or any criminal trial for that matter) if the prosecutor truly believes the jury will find the person not guilty. But finally, when the stakes are high (such as in the Ferguson case, or any case where someone is killed) the prosecutor should not take the weight of the decision on his own shoulders. It is, in these instances, appropriate to make the citizens of the area in the form of a grand jury make that weighty decision.