I know its late in this rapid-fire digital age to be posting about Michael Brown. After all, all the talking heads on TV have been blabbing on about their “expert opinions” all day. But unlike them I actually have a practice and was in court all day. I also find it interesting that many of them have never presented a case to State Grand Jury or defended a person testifying in a State Grand Jury. I can tell because many of them are referring to Federal grand juries (very different) and most of them seem to have just gotten past puberty. But much of the noisy punditry has failed to explain to the public the rarity of a “No True Bill” finding from a Grand Jury. To summarize my opinion, it seems to me that this Grand Jury was set up to clear Officer Darren Wilson from the beginning.
But first a brief explanation of the Grand Jury process in Missouri which is very similar to the Grand Jury process in New York. A grand jury is an arm of the prosecution’s office, it is not a body of the court. In Missouri, a grand jury judge selects twelve people to serve on the GJ for about a month during which time they hear evidence on a number of cases. This specific GJ’s term was extended in order for it to hear the Michael Brown case. 9 out of 12 must vote in a favor of a verdict. In NY, a GJ is made up of 23 people who serve for about a month and 12 of those 23 must vote in a particular way in order for there to be a verdict. If the GJ finds probable cause that a crime was committed and that the defendant committed the crime, the GJ votes an “indictment”; if not the GJ votes “No True Bill.”
Unless the defendant testifies, the defendant is not allowed to be present in the GJ; neither is his counsel. If the defendant elects to testify, he can still not be present for the rest of the GJ presentation so he goes in not knowing what other evidence has been presented. His lawyer cannot ask questions and cannot even object. He is there only if the defendant wants to seek counsel from him during his testimony. In NY prosecutors are bound by the rules of evidence but that’s apparently not the case in Missouri.
But the most important thing about the GJ is that it is the prosecutor’s show: there is no judge present and he operates in secrecy. The GJ is in total control of the DA. I am almost obligated at this point to mention that Judge Sol Wachtler, the former Chief Judge of the State of New York , was quoted as saying, “A grand jury would indict a ham sandwich,” (See People v. Carter, 77 N.Y. 2d 95, 107 & n.1 (1990) (Titone, J., dissenting). This is perhaps the most overused and cliched phrase in the criminal justice system, but that’s probably because it is so true.
But that also means that the GJ could choose not to indict a ham sandwich charged with containing ham. Because HOW a case is presented is as important as what evidence is presented. The tone, demeanor and attitude of the presenting prosecutor can greatly effect the outcome of GJ presentation. The GJ provides a nice vehicle for a DA to “wash his hands” like Pontius Pilate if a case is weak or if he thinks he is on weak legal ground. It provides nice cover. But a potential defendant testifying in the GJ is normally a prosecutor’s dream – its like a school field trip to the zoo in 5th grade.
In this case, though, Officer Darren Wilson, was treated with kid gloves. There was tremendous opportunity to attack his testimony and credibility by confronting him with physical evidence that contradicted his testimony. That did not occur here. He was led through th evidence, time and time again. Some simple points: he was purportedly punched hard, with full force , twice by Micahel Brown (who he described as a “demon: and Hulk Hogan”) yet Wilson had no injuries that would reflect that kind of assault. The hospital record shows him as being “in no apparent distress” and “well-appearing.” It also reports no lacerations, no bleeding and no bruising. How about confronting Wilson with some of this? Or with his photos which show him to be looking like someone who was not punched in the face twice by a large man.
How he was punched on the right side of his face while in his car is another point to have been addressed. Maybe he could explain it, but perhaps a strong cross on these areas would lead him to move off his rehearsed and prepared testimony. That’s how you get at the truth.
But instead, his testimony was dealt with as a direct examination with no cross-examination. Presenting a potential target to the GJ is fraught with danger. Seasoned, hardened defense lawyers shake in their shoes when they walk their clients in because they simply don’t know what they are going to be hit with so it is extraordinarily difficult to properly prepare them for the testimony. I know I dreaded it the rare times that I have done it in my practice.But here, there were no surprises for Wilson. He was never caught off guard or pressured about inconsistencies. Almost all of the questions were softballs made to have him elicit favorable testimony to his cause. It makes me wonder – was he spoken to by the DA’s office in preparation of his testimony? Did the DA’s office share with his defense counsel the evidence they had and how it was to be presented to the GJ?
There were other instances where Wilson should have been pushed, like when he admitted that there was a period of time after he first shot Brown that Brown was down yet Wilson did not then go for a taser or other less deadly means of stopping Brown. He said Brown got up and “charged at him” – although he testified that this “charge” consisted of taking precisely one step towards him – and then he repeatedly fired at him. There was ample room for a vigorous cross on this and many many other issues during Wilson’s testimony which the presenting DA just accepted and moved on.
So it is a bit of joke for DA Bob McCullough to stand before Ferguson, Missouri and say “All the evidence was presented.” Its not what was presented Bob, its how it was presented. Any criminal defense lawyer would love to have his client treated in the manner that Wilson was handled in the GJ. But that does not happen – which is why “No True Bills” rarely happen – unless of course, that’s the particular flavor of ham sandwich the prosecutor orders.