The casket of Michael Brown exits Friendly Temple Missionary Baptist Church at the end of his funeral on Monday, Aug. 25, 2014. (photo: Robert Cohen)
31 August 14
hen that prosecutor finishes with that police officer in that grand jury, they’re going to love him.”
This is not a quote from the Ku Klux Klan.
This quote is from Jerryl Christmas, a local Ferguson defense attorney, talking about the Michael Brown case.
Grand juries have a shameful role in the criminal justice system.
How is that possible?
Historically, grand juries follow the lead of the prosecutor, and do what the prosecutor wants. Prosecutors generally want indictments. Police cases are the exception. Prosecutors work with police every day. It's a very close relationship.
Prosecutor Bob McCulloch comes from a police family. He wanted to be a policeman himself before a severe injury forced him to become a lawyer instead.
It takes nine jurors out of twelve to obtain an indictment – the same number can decide that no indictment should be issued. There are nine white members of the grand jury. Three members are black.
Indictments are virtually automatic in grand jury cases. The joke is that a prosecutor can get a grand jury to indict a ham sandwich.
There’s one exception to this rule. Police shootings of citizens.
McCulloch has the power to file charges without a grand jury. But he says he won’t.
Governor Jay Nixon has the power to replace McCulloch with a special prosecutor. But even after receiving a MoveOn petition to that effect with more than 100,000 signatures, he’s afraid of a political backlash. So he says he won’t.
“Bob McCulloch is a very experienced prosecutor, and he knows how to manipulate the system so that when it’s done, it will appear the grand jury did the ‘no true bill’ and that it was their decision,” Christmas said.
Christmas knows this because he used to do it himself when he was a prosecutor. “They knew my cues, whether or not I liked a case or didn’t like a case. I trained them on how to evaluate these cases,” he said. “If I didn’t like a case and felt like there should have been ‘no true bill,’ I knew how to present the witnesses and give the cues to the grand jury, and they would vote to no true bill it.”
McCulloch has said that “absolutely everything will be presented to the grand jury. Every scrap of paper that we have. Every photograph that was taken.” He says the grand jury investigation must take at least until October.
This strategy has provoked criticism as a disaster waiting to happen. Former federal prosecutor Alex Little says that this decision to present all of the evidence, and to use up such a long period of time, indicates that McCulloch is using the grand jury as a “delaying tactic.”
It’s hard to think of anything more cynical. The prosecutor has almost complete discretion as to what evidence the grand jury hears. There is no obligation to present defenses or alternative theories of the case, and because the grand jury is not an adversarial proceeding, there is no cross-examination of witnesses.
Officer Darren Wilson can walk into the grand jury room, tell his tale, and no trained opposing force will be challenging his story.
Why are grand juries still allowed in the United States? Every other country has banished them to the dustbin of history.
It’s hard to believe, but the Fifth Amendment actually mandates the federal government to use the grand jury in capital cases. Most of the states still use grand juries, although they have fallen into disfavor.
In most places, the grand jury question comes up every time a police officer kills a citizen.
Grand juries are an essential element of the new Jim Crow.
Only a new civil rights movement can end this abuse of power.
Bill Simpich is an Oakland attorney who knows that it doesn't have to be like this. He was part of the legal team chosen by Public Justice as Trial Lawyer of the Year in 2003 for winning a jury verdict of 4.4 million in Judi Bari's lawsuit against the FBI and the Oakland police.
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