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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Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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