As a former prosecutor and grand jury attorney, it’s difficult for me to watch the theatrics of this prosecution play out. Bob McCulloch wants the media to believe that the way he’s presenting the Ferguson shooting case to the grand jury is normal procedure. Not so. In reality, he’s prolonging a charade when it’s obvious that he simply doesn’t want to charge Darren Wilson.
Here’s how it works in the real world: A person is arrested. The police take the case to the prosecutor’s office. The prosecutor’s office talks with the officer and any witnesses available. The prosecutor determines the proper charges. The case is charged by information and set for preliminary hearing or grand jury review. Probable cause has to be determined by a neutral party before the case can move forward to trial.
In a preliminary, hearing the prosecutor presents their evidence in open court, the defense has an opportunity to cross-examine the witnesses and the judge determines if there is probable cause to move forward. In the grand jury, the prosecutor presents evidence to the grand jury. The grand jurors decide if “probable cause” exists.
Grand jury proceedings are secret and closed to the public; grand jurors are not allowed to discuss any of the evidence they hear outside of the grand jury. The prosecutor has full discretion in determining what evidence the grand jury will hear, and there is no duty to present defenses or cross-examination of witnesses. If nine of the 12 grand jurors vote for an indictment, the case moves forward to trial. Normally, the prosecutor’s office gets a homicide indictment done in the grand jury in one day – maybe two, if a witness is not available or there’s a scheduling problem with a detective.
Usually, grand jurors serve for four months at a time, and there are generally three grand juries a year. Grand jurors are chosen by the presiding judge from the regular jury poll of registered voters. The grand jury is supposed to be impartial but, trust me, the grand jury only hears from the prosecutor and the witnesses they call. The grand jury can question witnesses, but are guided by the prosecutor assigned to them.
Now, remember this is just a “probable cause” hearing; jurors are not trying to determine guilt or innocence. They just have to determine if there was “probable cause” to move on to trial. In short, jurors must ask themselves: “Do we have the right person; are they charged correctly; and is there enough evidence to move forward?”
The standing joke is that prosecutors can get a grand jury “to indict a ham sandwich.” It’s a stretch, but probably over 95 percent of the cases presented in the grand jury end with an indictment. If a case doesn’t get indicted, more than likely, the prosecutor didn’t think there was sufficient evidence to move forward.
Even if the grand jury decides not to indict on the prosecutor’s case, it could be presented again or sent to another grand jury. In other words, if McCulloch’s office really wanted to prosecute Officer Wilson, he would already be charged based on the information his office already has and it would be sent to the grand jury for confirmation.
McCulloch’s decision to present every piece of evidence to the grand jury is a delay tactic, which in my experience overwhelms the grand jury and usually ends up with a vote not to indict. Keep in mind, this is just a “probable cause” hearing - the grand jury is not determining “guilt or innocence,” which happens at the actual trial. The grand jury doesn’t really need every piece of evidence to determine “probable cause.”
Defendants rarely testify before the grand jury. His/her testimony is not necessary to determine probable cause. How the defendant testifies could be a deterrent for the prosecutor trying to convince a grand jury to indict. As a defense lawyer, I’ve never been asked to have a client testify. I’d be uncomfortable with my client testifying before the grand jury because I can’t be present to hear the testimony. I’d want my client in and out of the grand jury process as quickly as possible.
Reportedly, Mr. Wilson testified for four hours. I can’t imagine putting my client in front of the grand jury for four hours, unless of course I was confident of how the prosecutor was going to handle my client in front of the grand jury. Prior to testifying before the grand jury, Officer Wilson had opportunity to hear witness statements and conform his account of what happen based on the evidence that was reported.
Let’s not discount the psychological edge the prosecutor’s office has over the current grand jury if they really don’t want an indictment. This is a “holdover” grand jury, which means they are staying past their normal four-month term to hear this case. By now, this grand jury is very familiar with this prosecutor’s office and the way it presents cases. I’m certain they’ve formed a trust with the attorney that presents cases before them. They are accustomed to hearing police testimony and have probably even heard from Ferguson police officers before and have already formed an opinion on the reliability of their testimonies.
This holdover grand jury has developed a close relationship with the prosecutor’s office and also understands that this case has been presented differently than previous cases. They realize that the office normally gives them a charge to indict on, and never before have they been told to figure it out themselves.
Unlike what McCulloch would have us believe, prosecutors do not simply tell grand juries to “figure out the charges yourselves.” His office brings the grand jury enough evidence to charge or not. Prosecutors persuade grand juries to pursue their desired route.
I have not seen the evidence in this case and, unfortunately, Mike Brown is not alive to give his account of the day he was killed. He can’t sway the jurors’ decision.