Jerryl T. Christmas

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.

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(6) comments

Bobg

Listening to what was released from the grand jury and Officer Wilson's testimony, and I speak as a white male. I can imagine myself during my younger, stupider drinking and getting stoned days walking briefly in the middle of a street. And if a cop came by I would have got his attention and been told to get to the side walk if I wasn't searched for drugs first.. But I would have been scared and as compliant as possible. And as I usually didn't carry drugs I may have been searched and told to go home and told "if I see you again I will arrest you for loitering" or something similar. I could imagine if I were to have reacted with angry words and the like what would have happened, at least an arrest for disorderly conduct, and if I hit the cop all h... would have broken loose both with the cop and when my folks would have bailed me out later. I would not have had a community arguing police brutality. And how easily things can escalate. I work with alcoholics and with drug addicts, and these are mostly white folks, and I often hear stories of how they were drunk or stoned and got into arguments and the police were involved, etc and how bad things can happen if the person happens to be an angry drunk or an angry stoner. The best solution, I believe, is for cops to have body cameras so there is a public record of how both cop and suspect handle things. Sad as it is please let Michael Brown and his family rest in peace as his situation is unclear and in unclear situations convictions can't be obtained. The lynch mob mentality of how some handled this situation scares me a lot. Our country has sadly been that route before.

klahr123

LAYMEN SHOULD UNDERSTAND THE BASIC FALLACY OF THE PROSECUTOR. THAT IS, THE EXDISTENCE OF DISPUTED EVIDENCE IS P;LENTY OF GROUNDS FOR AN INDICTMENT AND SUBSEQUENT TRIAL. ONLY THE COMPLETE ABSENCE OF CREDIBLE EVIDENCE OF GUILT WOLULD JUSTIFY KILLING THE CASE AT THIS POINT. THAT IS, IT IS UP TO A TRIAL JURY, WITH X-EXAM OF ALL WITNESSES, TO DECIDE CREDIBILITY---AT LEAST IN A CASE WHERE A COP K,ILLS A KID W/O A WEAPON SOLELY ON THE BASIS THAT SOME CLAIMED THAT THE KID WAS CHARGING THE COP. UNDISPUTED EVIDENCE SHOWS THE FATAL SHOT WAS FIRED WHEN THE KID WAS 50 TO 10O FEET FROM THE COP!! THIAT CANNOT BE THE ACT OF IMMINENT FEAR OF DEATH AS THE LAW REQUIRES!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

23jordan

The out amazing part about this case is that everyone knows what McCullogh and the police department and the Governor are doing and they are getting away with it. It's almost as if they committed the crime themselves. How the heck does this happen? There is no way the FEDS don't I diet Wilson. If the state doesnt. A conviction is one thing but an dictment? This is sickening. Pathetic. I think k he is still going to get indicted. This is a coverup and the grand jury can't want to take the fall for McCullough.

Mad Man

I believe officer Wilson used excessive force in his shooting of Mr. Brown. The eyewitness reports are too substantial. That said, I do not believe the grand jury will indict Wilson. And that is an afront to justice. And could lead to violence.

Max

Mr. Christmas,

Will the oversight of Holden have an effect? What can Holden do?

purejuice

this is scandalous. i hope someone starts a fund to bring charges against him for obstruction of justice.

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