The United States continues to process the recent grand jury decision in Ferguson, Missouri. As protests gain steam across the country and interested persons pour over grand jury documents, the debate seems to only gain steam and the “sides” seem to further entrench themselves. As I’ve written and tweeted, a number of persons have said they don’t understand my position or they think I’m acting out of a bias. Because I think this is a moment for public discourse and that such discourse actually strengthens the public when it happens well, I want to lay out my view of the grand jury process and why it looks unjust to me.
Truth in advertising: I’m no legal scholar. I’m depending on the comments of some who are. I may have some things wrong and I’m happily corrected where I do. Again, that’s one benefit of a civil public discourse in times of sharp disagreement.
But here’s my perspective as clearly as I can articulate it. It revolves around what I understand of the grand jury process, the role of prosecutor and jury, and the definition of “probable cause” in determining if it’s possible that a criminal action took place. I’m not here arguing the facts of the case. Nor did the grand jury. I will refer to some of the established undisputed facts later, but only as a means of illustrating where I think probable cause existed, not as a means of saying, “This is what definitely happened.” I don’t know that. That’s not my claim. Please read with that in mind.
The United States is currently the only country that uses grand juries as part of its legal process. Grand juries normally operate with high levels of secrecy or anonymity in order to preserve the integrity of the process. The grand jury is separate from the courts and is not presided over by the courts. They maintain significant independent authority to compel sworn testimony, produce documents, and conduct official proceedings.
The prosecutor is that agent of the state whose responsibility it is to present a charge for the grand jury to consider and evidence in support of that charge. Ordinarily, the prosecutor considers the laws of the state, considers the evidence and the likelihood of conviction on certain charges. This is informal and seems to be driven, in part, by some consideration of whether he or she can win the case in the court of law. But the prosecutors role is to lead the case against the suspected defendant.
The grand jury, in a case like Wilson’s shooting of Brown, has the responsibility of determining whether there is “probable cause” that Wilson acted criminally in the shooting. Probable cause is a phrase that comes from the Fourth Amendment to the U.S. Constitution. It reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Most of us legal neophytes are more familiar with the evidence standard used in the actual criminal trial: “beyond a reasonable doubt.” In criminal trials, the prosecutor must prove his case at this higher standard–no reasonable doubt. But in a grand jury, the bar for an indictment is significantly lower. The prosecutor need only present enough evidence to establish “probable cause.” Here’s a common definition of “probable cause”: ”a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person‘s belief that certain facts are probably true.”
There’s a lot of subjectivity in that definition. But notice how low the bar is. A prosecutor need only establish “a reasonable suspicion, supported by circumstances… that certain facts are probably true.” That’s all that’s needed for a search warrant to come into your house, and that’s all that’s needed to return an indictment in the incident of Wilson shooting Brown.
Why I Think the Ferguson Process and Decision Were Unjust
With that as a basic introduction, I want to lay out my perspective that injustice occurred on three grounds.
First, the prosecutor in this case failed to play the normal prosecutorial role. His job was to bring a charge for the grand jury to consider along with his case or theory for why that charge meets the probable cause standard. Instead, this prosecutor gave an untrained citizen grand jury (ordinary folks like you and me) five possible charges and inundated them with “all available evidence.” Without guidance or a prosecutorial case, he left them to sift through the mounds of information.
Now, there are a couple things that I happily admit at this point. I happily admit that this has the appearance of greater transparency when compared to what normally happens. And I happily admit that in the opinion and experience of many the more select presentation of evidence during grand jury leads to improper charges being filed. In other words, our current process also is liable to charges of unfairness.
But the departure from standard practice is significant. The failure to specify any charge or present any case, I would argue, is a dereliction of duty as an officer of the state whose job it is to either (a) bring charges for a grand jury to consider or (b) without a grand jury determine he has no case he can make. This prosecutor punted on first and ten. He simply did not do his job, in my opinion.
Second, as a consequence of the prosecutor’s failure to act, the grand jury was forced to do the work of a trial jury without the benefit of criminal proceedings. In other words, once the prosecutor failed to present a case–any case–the grand jury was left to examine “all the evidence” and reach a determination from a blank slate. But that’s not the grand jury’s normal role. It’s normally the role of a trial jury to hear both sides, weigh all the evidence, and reach “beyond a reasonable doubt” conclusion. But there were no defense attorneys and prosecuting attorneys present to argue cases. There was no judge presiding over the proceedings and giving instructions to the jury. This group of twelve citizens were left with an excruciatingly difficult task.
Moreover, they were presented with information that most grand juries would never have to consider because normally grand juries only determine if there’s enough evidence to establish probable cause regarding the prosecutor’s case. To put it plainly, by being presented “all the evidence,” the jury actually heard something closer to a defense attorney’s case or strategy than they did a prosecutor’s case. What we must all realize is that according to supreme court precedent, in an opinion written by Justice Antonin Scalia, the prosecutor is not under obligation to present exculpatory evidence, only enough to make his case, and that assumes he is making a case. Here’s the heart of Scalia’s statement from a tweet:
— Judd Legum (@JuddLegum) November 26, 2014
When the grand jury was to “enquire upon what foundation the charge may be denied,” they were left to construct an entire case. That’s an abuse of the grand jury process, in my opinion.
Third, I think there was enough evidence–properly presented–to establish probable cause. Again, I am not attempting to argue all the evidence or make a final pronouncement about what actually happened. I’m simply trying to illustrate why I think this decision was unjust by presenting an argument using the evidence that the prosecutor did not present.
Let me use three pieces of evidence and testimony: the blood and DNA evidence in/on the vehicle, the distance from the vehicle at which Brown died, and the officer’s testimony of fearing for his life. A case against Wilson, it seems to me, would have to challenge the claim that he feared for his life at the time he fatally shot Brown.
According to blood, DNA and a wound with powder burns to Brown’s thumb, there was a fight between Brown and Wilson at the officer’s car. Apparently Brown was shot two times at the car and fled. This, it seems, would have been a time for Wilson to justifiable act in concern for his life. I’m not sure any reasonable person (a standard for establishing probable cause) would disagree with this evidence or this conclusion.
But, no one appears to challenge further evidence that puts Browns blood 150 feet away from the officer’s cruiser and Brown’s body 135 feet away from the cruiser. Those facts seem to corroborate testimonies from several individuals. That Wilson exited the vehicle and fired his gun several (10, I believe) times at a fleeing Brown. That Brown at some point turned back toward Wilson and made some movement back toward the officer.
Now, here’s where a prosecutor could raise questions about probable cause if they wanted. Brown’s blood is 150 feet away from the cruiser, which is 50 yards, half the distance of a football field. Is it reasonable to suspect that the threat at the car had passed as a wounded man fled the officer? Was the officer justified in continuing to fire his weapon at that point?
The fatal shot to Brown’s head appears to have happened at some point between 150 feet and 135 feet. Witnesses describe Brown as turning with his hands up and saying, “Don’t shoot.” Other witnesses describe Brown as moving toward the officer or, as one witness claims, “charging” the officer. The autopsy reports suggest Brown’s arms were down when shot rather than up. But the witness accompanying Brown on that morning testified that Brown doubled over and clutched his body as if shot in the side. That could help explain why the fatal shot entered the top of Brown’s head. And if Brown were even walking slowly toward Wilson when he turned at 150 feet and was subsequently shot in the torso, the momentum of walking, doubling over and falling could explain the 15 feet distance between 150 and 135 feet. Anyone who has played football knows a falling receiving or running back can cover 3-5 yards, even with a tackler on his back. It’s possible that a man of Brown’s height and build, wearing only one shoe (recall the other sandal was near the officer’s car), doubled over with forward momentum and possibly trying to stay on his feet would have stumbled and fallen 15 feet.
So, we’d be left with the question: Did Wilson act in fear of his life or does the evidence suggest some charge would have probable cause evidence to support it?
But we didn’t get that proceeding. Instead we got what appears to be a grand jury overwhelmed with “all available evidence” without any theory for interpreting the evidence toward a charge from the prosecutor.
One more time: I an NOT saying this is what happened. I’m simply illustrating how the commonly accepted points of evidence could be fit into a theory to support a charge of manslaughter or something else. And I think we have grand jury proceedings to determine whether such charges are reasonable. But that didn’t happen here. For that reason, we are left with the specter of injustice.
Let me make one final point that the social science is abundantly clear on. Many of you know I’m a recovering social psychologist whose research interest included procedural justice. That’s the study of procedures (usually legal) and how the perceived fairness of those procedures affect satisfaction with the outcomes. The theory, over-simplified, goes like this: In situations where there are perceived winners and losers in a dispute, when people view the procedure for resolving the dispute as fair they have higher satisfaction with the outcome. So, if the process is fair, they tend to feel some level of satisfaction with the outcome even when they lose. That’s why this matters. It may not have averted the sinful aftermath of property destruction and looting, but it would have positioned many reasonable persons with greater confidence in the system and better footing to work with others.
Now, I don’t believe this situation is final. Justice–that perfect justice ushered in by the Perfect Judge and Lord–will be final. When He comes it will be good news for those who love His appearing, and it will be eternally devastating news for those who love unrighteousness. His justice will not be blind; it will be perfectly informed, comprehending all the facts and all the intents of the heart. His blazing righteousness will be the undoing of everything corrupt and in His kingdom there will be no evil. I wait with panting for that Day. Until then, I labor with the faith and resolve that comes from knowing such a Day is coming and we’re called to live in light of it.