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Perryman Note: The following is a column by
Judge Wendell Griffen,
pastor
and circuit
judge
Let’s cut to the chase about what a grand jury is
and isn’t.
A grand jury is a proceeding used by a
prosecutor to show that probable cause exists to charge
someone with committing a crime. It is not a trial of all
the evidence. It is not a test of how strong the evidence
may be during a trial. It is not–and has never been since
the origin of the grand jury centuries ago–what
Prosecutor
Robert McCullough orchestrated concerning the death of
Michael Brown
in Ferguson,
a de facto trial on the strength of evidence supporting
criminal charges or defenses.
The issue for the grand jury to determine is
whether the prosecutor presented evidence that supports a
reasonable suspicion that (a) an offense occurred, and (b)
that someone committed the offense. Reasonable suspicion is
a lower standard of proof than preponderance of the evidence
(the standard for proving a civil case at trial) and much
lower still than beyond a reasonable doubt (the standard for
returning a guilty verdict in a criminal case).
A grand jury is not the same as a trial jury
because grand jury proceedings serve a wholly
different function from criminal trials. The issue during a
criminal trial is whether the prosecution can establish the
elements of the charged offense(s) beyond a reasonable
doubt. Reasonable doubt is not a mere possible or imaginary
doubt. It is the doubt that arises from careful
consideration of all the evidence and which, after that
consideration, causes a fair-minded person to pause and
hesitate in the graver transactions of life. If a trial
juror has reasonable doubt about whether the prosecution has
proved the elements of charged offenses, the juror has a
sworn duty to return a verdict of not guilty, no matter what
the rest of the world thinks.
A criminal trial is the ONLY
proceeding where jurors are supposed to weigh conflicting
evidence concerning criminal charges. That is because the
issue in a criminal trial is to determine whether there is
evidence beyond a reasonable doubt that proves someone
guilty of having committed a crime.
Let’s debunk the “conflicting
testimony” comments that have been made by Prosecutor
McCullough and in various media. Trials always involve
conflicting proof and contentions. If a defense attorney
isn’t able to dispute something about the evidence a
prosecutor presents the defense attorney will attempt to
negotiate the best outcome for an accused person short of
trial. Criminal trials routinely involve disputed evidence,
competing narratives, and challenged assertions.
Grand jury proceedings, on the other
hand, are not intended to determine guilt, but to justify
charging someone with committing a crime. The reason to
submit a case to a grand jury is to get an indictment. If
the prosecutor doesn’t think the facts surrounding a case
will support charging someone he or she shouldn’t waste the
time and energies of citizens who serve on a grand jury by
requiring them to consider it.
The proverbial saying that a grand
jury will indict a ham sandwich is based on the reality that
a prosecutor controls what happens in grand jury
proceedings. Witnesses who might offer accounts that would
lessen the likelihood of arriving at a finding of probable
cause are not presented during grand jury proceedings
(remember that the desired outcome is an indictment). And
when a potential defendant appears before a grand jury, the
prosecutor has a particularly favorable advantage. Witnesses
(including potential defendants) may not be assisted by
their attorneys during grand jury testimony.
Lawyers and judges familiar with the
way criminal cases are handled and tried–and I count myself
in that number–immediately recognized what the general
public probably didn’t sense when Prosecutor McCullough
announced (a) that he would defer the charging decision
concerning the homicide (death by another person) of Michael
Brown to a grand jury, (b) that he would do so without
recommending a specific charge, (c) that Darren Wilson would
testify (of course without the presence of his attorney),
and finally (d) that McCullough’s office would present the
grand jury with all the possible evidence related to the
investigation of Brown’s death. The ensuing grand jury
proceeding, dragged out over several weeks and marked by a
number of curious leaks of what is typically secret
information, gave trained legal professionals more clues.
What was supposed to be a secret
process focused solely on the proof needed to support
charging Darren Wilson with killing Michael Brown was, to
many legal professionals, little more than a cynical charade
aimed at shielding Wilson from being charged in state court
for killing Michael Brown. When McCullough’s office
announced that it would release all the grand jury testimony
and witness statements to the public after the grand jury
reached its decision we knew there would be no indictment.
No prosecutor would ever do such a thing unless he or she
knew there would not be a trial. To release grand jury
material after an indictment but before trial would risk
tainting potential jurors, among other things.
I would have disagreed with a decision by
Prosecutor McCullough to not charge Darren Wilson with a
crime for killing Michael Brown had he announced that
decision at the outset. However, the decision whether to
charge people with committing crime is reserved to
prosecutors. We are obliged to accept those decisions,
whether they are to prosecute or not, no matter how much we
may disagree with them. And because Mr. McCullough chose to
defer the charging decision to the grand jury, we are
obliged to accept the decision by the St. Louis County grand
jury that no probable cause exists to charge Darren Wilson
with any of five possible crimes for killing Michael Brown.
I accept that.
What is unacceptable is the charade
the world, but especially Michael Brown’s parents, other
relatives, and neighbors, have been forced to suffer. Mr.
McCullough’s office treated this grand jury proceeding as if
Darren Wilson was their client. Witnesses whose accounts
supported Wilson’s behavior were questioned in much
different ways from those whose accounts pointed toward
charging him with killing Brown. And the questioning of
Darren Wilson by McCullough’s deputies was remarkably
unchallenging. Wilson’s defense team could hardly have asked
for better questions from lawyers paid to present the most
favorable evidence and arguments for charging Wilson with
committing the homicide.
Finally, it is clear to anyone with
even a passing understanding of criminal procedure that
McCullough’s remark about it would have been unethical to
charge Wilson without having all the evidence doesn’t ring
true. Prosecutors almost never have all the evidence when
they decide whether or not to bring charges. They decide
whether to charge based on the evidence they have which
suggests they can clear the probable cause bar. Charges are
sometimes brought and later abandoned based on evidence
developed after the charging decision is made (including
unavailability of witnesses and loss or disqualification of
desired evidence, among other things).
In the popular movie “A Few Good Men” Marine Colonel Nathan Jessup
(portrayed by actor Jack Nicholson) dramatically challenged
Navy Lieutenant Daniel Kaffee (portrayed by Tom Cruise) with
this unforgettable statement: “You can’t handle the truth!”
Like it or not, the sad truth is that the law enforcement
and prosecutorial apparatus in St. Louis County, Missouri
clumsily yet doggedly worked to prevent Darren Wilson from
facing criminal charges for killing Michael Brown, Jr.
People trained in criminal law and procedure recognized that
long ago.
Many of us seethed as Darren Wilson
received preferential treatment because of his status as a
police officer. Known homicide suspects aren’t concealed by
the police (concealing evidence, including the identity and
whereabouts of a criminal suspect is improper, if not
criminal). Darren Wilson’s identity was concealed minutes
after he killed Michael Brown. He was protected from being
arrested and charged by the very officials empowered to
arrest and charge him.
Here’s the truth about which so many
people are disturbed, even outraged. Wilson, as Brown’s
killer, deserved to be treated fairly–meaning no better or
worse than anyone else suspected of killing someone. Brown’s
death deserved to be investigated and handled fairly–meaning
no better or worse than anyone else shot to death by
someone. That could have and should have happened. It
didn’t.
Prosecutor McCullough oversaw a
travesty of justice that will haunt us all. Handle that
truth. Then we should work to make sure that it doesn’t
happen again.
WE
MUST KNOW FACT FROM FICTION, ACT AND KEEP THE FAITH!
© Wendell Griffen
The Hon. Wendell Griffen is pastor of New
Millennium Church, Little Rock, AK and Circuit Judge, Sixth
Judicial District, Fifth Division, Arkansas.
Used by permission
Contact Rev. Donald Perryman, D.Min, at
drdlperryman@centerofhopebaptist.org
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