Defense of #Ferguson grand jury as a crucible for truth fails straight-face test

Tuesday, November 18, 2014

Good morning:

Paul Callan, a former prosecutor, ironically calls for sanity in his article at the Daily Beast yesterday titled, There’s No Conspiracy in Ferguson’s Secret Jury. I say ‘ironically’ because his argument is based on the fundamental Sixth Amendment rights of an accused to be represented by conflict-free counsel who cross examines prosecution witnesses in a public trial, not a secret grand jury proceeding.

As he well knows, the target of the grand jury investigation is Officer Darren Wilson. Neither Wilson nor his lawyer have a right to be present when the grand jury hears evidence about his case. They have no right to know who the witnesses are or what they say and there is no right to cross examine. There is no judge and the rules of evidence do not apply. The prosecutor decides what the charge or charges should be and he controls what evidence the grand jury gets to hear. He can introduce evidence that would not be admissible in court, such as hearsay or inadmissible civilian and expert opinions. He has no obligation to present exculpatory evidence. For all of these reasons, grand juries have been called star-chamber proceedings. Critics are only half-kidding when they say that a prosecutor can persuade a grand jury to indict a ham sandwich.

The flaw in Callan’s argument is that he assumes that the prosecutor will play the traditional role of defense counsel in a public trial to aggressively, thoroughly and effectively expose the truth in the crucible of cross examination. That assumption is false because a prosecutor’s job is to represent the people by obtaining an indictment to prosecute the defendant, not defend him. If, as in this case, the prosecutor has close ties to police — his father was a white police officer who was killed by a black male and he has a history of sympathy for white cops and antipathy for black defendants — there is a reasonable and legitimate concern that he has a conflict of interest.

The unstated premise in Callan’s call for ‘sanity’ is no one should worry about the outcome of the grand jury because the prosecutor is going to play the role normally entrusted to an aggressive, thorough and effective defense lawyer using cross examination to expose the black eyewitnesses for the ‘liars’ that they are.

The grand jury’s job is limited to deciding if probable cause exists to believe Darren Wilson murdered an unarmed Michael Brown. The answer is “Yes,” and we have known that since August 9th, a few hours after the shooting.

Whether he is guilty or not guilty should be determined by a jury after a full and fair public trial presided over by a judge who correctly applies the rules of evidence.

Read this excerpt from Callan’s call for sanity and let us know what you think.

In a high-profile matter like the Brown case, the prospect of a witness getting his or her name and image in the newspaper or on TV by embellishing the story is for some an irresistible temptation. Repeating an embellished story before a grand jury while under oath is an entirely different matter. The grand jury inquiry affords opportunity to test accuracy of witness accounts. If the witness did in fact witness such a terrible crime, the testimony will survive in the crucible of cross-examination. If true, it will have a discernable [sic] consistency with the forensic evidence. Was the witness really in the time and place to have made the claimed observations? Was the suspect raising his hands in a surrender gesture or could the arm placement have been viewed from a different angle as an aggressive “tackle” gesture? How close was Michael Brown to Officer Wilson when he turned in Wilson’s direction? How much time did the officer have to react? Do the varied autopsy reports support or contradict witness testimony? Did Michael Brown have a motive to violently attack the officer?

Experienced prosecutors can recount case after case of witnesses recanting or altering colorful public statements under cross-examination. Witnesses also make unintentional errors sometimes based on what they have heard from others. Once again focused inquiry by the prosecutor and even the grand jurors who have the right to ask their own questions, can clarify ambiguous or inaccurate points.

By the way, I happen to know a lot about grand jury practice and procedure because I have represented many clients who were targets, subjects or witnesses during my 30-year career as a felony criminal defense lawyer.

To say that a grand jury is an ideal way to discover the truth does not pass the straight-face test because it cannot be said without laughing.

17 Responses to Defense of #Ferguson grand jury as a crucible for truth fails straight-face test

  1. MDX says:

    Shaun King, as he does so often, shows how the police lie:

    http://www.dailykos.com/story/2014/11/19/1346078/-A-lie-in-the-Darren-Wilson-defense-in-the-shooting-death-of-Mike-Brown-that-just-won-t-go-away

    I suggest also scrolling down to a good comment by GrumpyoldGeek.

    The forensic evidence matches what the witnesses saw – a young man bolting in absolute fear after being shot in the arm and an enraged cop following while firing.

    Sure, the defenders will claim that the turn to surrender was a “threat”, but what about the hail of lead unleashed at a running Brown before he turned?

    King’s post has a CNN video wherein they state the lie of 35 feet as if it were a fact.

    Dumping all the “evidence” on a GJ and letting Wilson make his crafted lie is not justice.

    Do you think there will be the critical analysis using photo analysis and measurements that King made here?

    That is the job of the prosecutor and, dollars to doughnuts, says he did none of that.

    • Two sides to a story says:

      I saw an Anon tweet saying that and that they wanted to see “how far down the rabbit hole” the connection went, but haven’t yet seen the same Anon account come back with more info yet.

      Looks like the GJ receives their last evidence on Friday – lots of speculation about whether they will make their decision then or if they must deliberate first. If they do make a decision, then the announcement will come after the Gov has given law enforcement 48 hours.

  2. Diamonique says:

    I knew this GJ was BS when the prosecutor announced that in order to be “fair and balanced” he was going to include evidence in Wilson’s favor so the GJ can weigh both sides. WTF?! That’s not what a grand jury is supposed to do.

    • I’d bet the ranch, if I had one, that Wilson was untorched in the crucible of cross examination. Probably, the toughest question he had was, “And what did you do next?”

      • so jaded says:

        Police are never held accountable. They have immunity. In the rare case there is an indictment the jury fails to convict. Avoiding the police is the best recourse. I instruct my 2 sons not to ever have any contact with police. No eye contact cross street to avoid them etc. As an institution they are more powerful than wall street.
        until police brutality start to affect affluent white people it will continue.

        • a2nite says:

          To so jaded: The police are WS’s enforcers.

        • Technically, police do not have legal immunity. They have qualified immunity from civil suit, if they are acting in good faith in the performance of their duties. They can be prosecuted for crimes they commit and they can be sued for money damages if they injure someone using excessive force.

          I said, ‘technically’ because you’re right. As a practical matter, the rules are just words on a piece of paper.

          A jury acquitted 2 cops who beat an unarmed Kelly Thomas to death on video.

          • Malisha says:

            I saw a case in NY. A guy sued the police and got $75,000. For what? They responded to a domestic violence call because some judge in the divorce court had ordered that mom and dad do thus and such and either mom or dad called the police saying the other one is here and has the kids and won’t do such and such and it’s getting heated so the police show up and they ORDER the father to leave the apartment and he won’t because he doesn’t like the way they read the order. They say, “leave now and Monday morning when court opens, you can go to court and get this straightened out but we can’t leave you two here with an ongoing conflict and danger to the kids.” He won’t leave and one of the cops tries to escort him out and he goes off on the cop so they arrest him and hold him (I think it was) 16 hours until they let him leave on his own recognizance to come back later on misdemeanor charges. So he gets his lawyer to go to the divorce court and get the criminal case “transferred” into divorce court and then dismisses it. (There is no such thing as such a transfer.) Then the guy sues the police for false arrest and the city of New York SETTLES WITH HIM FOR $75,000.

            HUH? Guess what color that guy was? [Hint: his wife was Black and she lost both the case and the kids]

          • Two sides to a story says:

            SMH. I will enjoy seeing the day when white liars are disbelieved.

      • roderick2012 says:

        I am sure that the DA led him in the questions during his four hours of testimony.

  3. Disappointed says:

    I’m not sure if this answers your question but here is my opinion. So many people automatically take the police officers side because well he’s a police man. My thoughts are there are many witnesses who have contradicted the police version. Brown can not tell his version. Johnson told what he witnessed. No reason to lie he was not the one being accused of going for gun.
    Why would anyone believe 100 % what law enforcement claim? They are human also no better than the next guy. There is too many witnesses that disagree with Wilson. Why are the witnesses discounted (even the construction workers that are not from the area) ?

    • Malisha says:

      The answer to all those “why” questions is:

      “So it will still be safe for whites to kill African Americans if their own status is not degraded.” (Dunn and Wafer were degraded-status whites.)

    • Two sides to a story says:

      Sociopaths and narcissists are attracted to positions of power. What better place to hide than behind a policeman’s uniform. By the looks and numbers of U.S. police abuse, there are an awful lot of sickies in PD.

  4. MDX says:

    This guy is a paid shill for the meme that “the blacks” may or will “unjustifiably” be very mad at the distinct possibility of Wilson not being charged.

    The “whitesplainers” are already out in force claiming that the GJ sham is “fair and balanced”.

    One made the argument that the GJ was “fair” because the racial composition was mostly white as is the county.

    That assumes:

    A) whites in that country have no racial bias in favor of the police

    B) blacks are biased against a police officer who is white

    IOW, it is a clever crap argument that ignores the systemic racism that is rife in our society.

    And it get worse:

    Assuming for arguments sake, that blacks and whites would be, on an individual basis, equally likely to be biased, then a jury of 12 wherein there are ten white and two blacks will be collectively biased in favor of the white officer.

    It is real easy to simulate.

    Take a jar of randomly sorted black and white marbles. Pull ten white ones and two black ones, Then flip a coin wherein head makes the individual marble biased and tails makes it objective.

    The results will be a whole lot of B37 going on.

    IMO, this shit has to stop. And the only way to do that is to allow the African American communities to decide who gets to police them.

    What makes a twit like Wilson, who loves blacks so much that he lives 25 miles away in 99% white community, best qualified to police the Ferguson community?

    And I can already see the lame “whitesplainer: counter argument:

    “the police chosen by blacks will let them get away with murder {figuratively}”

    Gee, isn’t that what the police imposed on them by whites is already doing {literally}?

    • racerrodig says:

      Well stated other than……….

      “IOW, it is a clever crap argument that ignores the systemic racism that is rife in our society.”

      I don’t think it’s even clever, it’s just ballsy.

      B37…..yep….how many of those can we take in one lifetime ??

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