Of Ferguson and Ham Sandwiches

Aside from the usual noise over events in Ferguson, MO recently, which have lurched awkwardly from news(-ish) event coverage, to protest coverage, to riot coverage, I found two brief articles that shed light on the grand jury process. The Wall Street Journal has an article by Ashby Jones about the legal standards behind an officer’s use of force and how grand juries treat similar cases.  Over on SCOTUSBlog, Eric Citron writes about the use of exculpatory (defendant-friendly) evidence in grand jury proceedings. The grand jury is a mystery to most Americans, who have either forgotten what they learned in their ninth grade civics class, or were never taught about it. Of course, some of us are just too invested in Dancing With the Stars to learn about a part of the justice system that really should have seen its own “Schoolhouse Rock” song by now. (Spoiler: The Duck Dynasty girl came in second).

Themis 3439Interestingly, Citron notes that in federal prosecutions, grand juries rarely refuse to return an indictment. On its face, this is consistent with the famous quip attributed to New York Chief Judge Sol Watchler, that a prosecutor could “indict a ham sandwich” if he wanted. But the WSJ article quotes a criminal justice professor who claims that indictments against police officers for wrongful shootings are particularly difficult to obtain. Aside form the fact that Ferguson is a decidedly state-court matter and not a federal prosecution, it’s difficult to imagine the cause of the discrepancy. Why would grand juries, generally quick to return an indictment when a prosecutor presents evidence of probable cause, be particularly slow to do so when the target is a cop accused of wrongful or excessive use of force? Perhaps a reluctance to second-guess someone in a position of respect. Perhaps, as the WSJ notes, the test of whether the officer’s actions were “objectively reasonable in light of the facts and circumstances confronting them” insists that the jurors inspect the facts up-close, and allow some deference for the brief window of time in which officers are called to act.

Citron’s article suggests that Ferguson Prosecutor Robert McCulloch did not really pull out all the stops to get an indictment because he introduced evidence of both sides: witnesses and facts to support probable cause, and evidence which undermined the state’s case. The Supreme Court has ruled that the Constitution does not require a prosecutor to present exculpatory evidence to a grand jury. It is, after all, not a test of guilt but a test of whether the facts support charging someone with a crime. Of course, withholding exculpatory evidence at trial–where guilt is determined–is another matter entirely and amounts to prosecutorial misconduct. But a grand jury is an internal proceeding.

Imagine a football coach wants to determine the skills of his team’s offense. One coach might evaluate the offense without anyone else on the field, making sure they know all the plays in the play book. Another coach might want to see how it looks against a competent defense, because he’s less concerned about running clean routes than facing a challenge, so he calls up a full scrimmage.  Which approach is better depends on the coach’s goals and which technique better prepares his team for the big game.

The same could be said of a prosecutor’s goals. Is he to secure indictments or convictions? While both are deterrents to crime, the indictment is a always a partial measure–a temporary inconvenience–embarrassing and costly and perhaps even offensive, but always minor compared to a conviction. There’s a reason that nobody ever said, “That loser dating my sister is an indicted felon!” Convicted felon is the preferred slur (though the phrase is actually redundant). Also, a prosecutor with 100 indictments and no convictions probably should be looking for a new gig. It’s the conviction, not the indictment, that is the expression of the state’s authority, the cop’s vindication, and the prosecutor’s ability to pay his mortgage.

But how best to convict the burglar, the banker, or the barista of a crime is the real puzzle. A grand jury evaluation unhindered by exculpatory evidence would more likely return an indictment, and thereby force a plea agreement, even where the state’s evidence is not overwhelming. The result? More convictions through volume.  On the other hand, indictments that have overcome a rugged and more rounded examination by the grand jury might be considered battle tested, and result in a stronger, more compelling case, either for trial or by bringing a defendant to the bargaining table. The result? More convictions through precision.

By presenting exculpatory evidence, Prosecutor McCullough undoubtedly made it more likely that the officer would not be indicted. But the non-indictment from the grand jury suggests he may have also prevented a long, drawn-out trial process that would only have ended in an acquittal. Comments on this approach portrayed McCullough as both hero and zero. The Huffington Post called his actions “bizarre,” while William I. Aronwald, a former assistant district attorney and federal prosecutor, said that McCullough handled the situation “perfectly.”

Reasonable people can disagree about whether the Ferguson grand jury made the right decision. But 70 hours of testimony is a substantial amount of information. I dare say the average critic–or blind supporter–of the decision probably has not read through it. I sure won’t. And since grand jury proceedings do not occur in a public forum, like a criminal jury trial does, all praise and criticism happens with a heightened level of ignorance. Even a dry transcript does not always give the full account of a witness’s testimony, and courts have long held that a witness’s demeanor is relevant to a jury’s evaluation of his truthfulness.

More importantly, grand jury decisions are not sweeping democratic policy statements, like Acts of Congress. Broad conclusions about culture, racial identity, or the landscape of what America has become–all perched atop a single grand jury decision–are precarious at best. Improving the justice system is a slow and tedious process, and the loudest voices in the Ferguson melee simply don’t have the patience for it. MSNBC and Twitter are ill-suited to the task. Those with a sincere interest in institutional changes that improve the justice system will use the voting booth, not the hashtag.

 

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High Wire Risk and Daredevil Litigation

Nik Wallenda became the latest person to capture the nation’s attention with a crazy stunt that did not involve handing a microphone to Vice President Biden.

On Sunday, Nik Wallenda became the latest person to capture the nation’s attention with a crazy stunt that did not involve handing a microphone to Vice President Biden. In case you missed it, Wallenda successfully walked across the Chicago River on a wire some 50-stories up in the air. While the risk associated with crossing any street in Chicago is substantial these days, 5.8 million people will actually watch Wallenda.
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Normal people wonder at the bravery (or insanity) of Wallenda’s actions, or marvel at his skill. Lawyers, insurance adjusters, and PR agents tend to take a more gloomy view of human events. So, consider what a litigious people might do in the wake of the modern daredevil’s actions.

Scenario #1: Tragedy happens and the Wallendas sue the City, the State, and everybody else they can think of.

Most defendants would get out of this suit early, based on the extreme risk assumed by Wallenda. As it was, his most likely injury was probably carpal tunnel syndrome from all the liability waivers that he signed. However, if someone took on a special duty, like rigging the wire or other equipment, and the family could prove this contributed to the outcome, there might be some contractual violation. Such a contract would probably already limit the loss through liquidated damages, which are damages negotiated in advance in a contract.

chicago1Scenario #2: Tragedy happens and local TV crew witnesses horrific ending and sues its network and local affiliate for the emotional trauma.

At least some TV crews were required to sign a waiver explicitly prohibiting such a lawsuit in the event of a tragedy. But even without such a magic bean, it’s doubtful that a suit like this would get far. A TV reporter has a certain assumed risk to the facts or events that he or she may witness.

Scenario #3: Tragedy happens and the FCC fines the Discovery channel for a violation of broadcast guidelines.

The FCC has no jurisdiction over cable programming directly, but any over-the-air station that carried the event live could be subject to fines which the station may or may not successfully pass along to Discovery. For its part, Discovery ran a 10 second delay in the broadcast, just in case.

Scenario #4: The State of Illinois fines the City and/or the Wallendas for failing to put up a net.

This one might have some teeth, if the state fined the person or entity truly responsible. The ABC affiliate in Chicago noted this curiosity:

Chicago city officials ignored a state law requiring safety nets for aerial acts higher than 20 feet, saying the law wasn’t intended for “elite” performers.

Ignored. Not “applied for a waiver to” or “found an arguable loophole for.” Simply ignored. If it weren’t Chicago, that part of the story may have caused a bit more of a stir than it did. It’s unclear whether the city or the performer is ultimately responsible for the violation, or the penalties. Either way, the violation seems undisputed. Of course, since no tragedy happened, it will almost certainly be forgotten. But if Chicago can get the deceased behind the curtain on polling day, whose to say the State of Illinois wouldn’t issue a fine to Wallenda for this violation if something had gone wrong?

Scenario #5: A random woman’s reaction to the successful stunt, filmed by the Discovery Channel, becomes a successful, if embarrassing, internet gif.

Assuming the woman was not in a private place when her image was taken, she’s probably going to lose. The right to privacy does not extend to my right not to be photographed or videoed in a public place. If I’m walking down the street, photos of me are fair game. If that’s not enough, the Discovery Channel certainly had its bases covered on the scene:chicago2