Abolish grand juries and independently prosecute by information the cops who kill

December 5, 2014

Friday, December 5, 2014

Good afternoon:

Time to get rid of the grand jury (See ham sandwich, indictment of)* and demand governors appoint independent prosecutors to prosecute killer cops.

I despise secrecy, especially secret meetings attended by people who discuss and decide matters that affect others without their knowledge or consent. Democracy requires transparency. It cannot function when decisions are made in secret and carried out without the knowledge and consent of the governed. Similarly, our courts must be open to the public so that the people that it serves can observe and decide whether justice is being dispensed. Indeed, the Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment guarantees an accused a right to a public trial and the First Amendment protects the public’s right to know what its government and its courts are doing.

A star chamber proceeding has no place in a democratic society; yet, that is what a grand jury does. It meets in secret and decides whether to charge people with crimes. The identities of its members are kept secret as are the identities of the witnesses and their testimony before it.

Why do we have this deplorable practice?

We need to return to not so merry old England during the 11th century when the king was all powerful and able to stifle political dissent and steal valuable lands that he wanted by accusing, imprisoning, prosecuting, convicting and killing people for crimes they had not committed. To prevent him from abusing the criminal law to satisfy his lust for wealth and power, the aristocracy of the day took away his power to decide whom to charge. Hence, the grand jury was created to make that decision and the king had to convince its members that there was a legitimate reason to accuse someone of a crime.

We live in far different times and while there remains a legitimate concern that the criminal laws will be abused to punish and silence those who dissent (fill in the names of any whistleblowers here), we do have a process to review criminal charges for legitimacy. It’s called a probable cause hearing.

What is probable cause, you ask?

The Supreme Court of the United States (SCOTUS) defined probable cause in Brinegar v. United States, 338 U.S. 160 (1949) as follows:

where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

The sole function of a grand jury today is to decide whether there is probable cause to believe that a person committed the crime charged. A prosecutor typically decides whom to charge and what crime to charge. Armed with a proposed indictment and accompanied by the police detective who ran the investigation or the officer who arrested the suspect or target of the grand jury ‘investigation,’ the prosecutor puts the detective or cop on the stand and has him or her summarize the evidence against the target. Then the grand jury votes on whether there is probable cause. Depending on the size of the grand jury, at least 9 out of 12 or 12 out of 23 ‘yes’ votes are needed to return an indictment or true bill. Otherwise, it’s a no bill.

Many states have abolished the grand jury because it’s a pain-in-the-you-know-what to deal with. Instead, a prosecutor will review a case-investigation file for probable cause, and if it’s there, file an information charging the defendant with a crime or crimes. To satisfy the probable-cause requirement they have the detective or cop who arrested the defendant sign a statement under oath setting forth the evidence in the case. The affidavit is attached to the information and submitted to a judge to review for probable cause. If the judge finds probable cause, he or she signs an order to that effect. Then the information, affidavit for probable cause and order finding probable cause are filed.

Washington State where I practiced law for 30 years uses this process instead of the cumbersome grand jury.

Florida, Missouri and New York use both procedures. In Florida, for example, Angela Corey charged George Zimmerman by information with murder 2 and Michael Dunn with murder 1 by grand jury indictment (Florida requires murder 1 prosecutions to be by grand jury indictment).

Why did the prosecutors in Missouri and New York choose the cumbersome grand jury process instead of charging by information?

The simple answer in two words is ‘political cover.’

State prosecutors, who are elected by the voters, work closely with the police. They see themselves as partners with police in fighting crime. The last thing they want to do is to prosecute a police officer for killing someone. Not only is that like prosecuting a member of your own family for murder, it’s a great way to destroy a working relationship with police officers and lose the next election. In other words, they have a conflict of interest and it’s way too easy to succumb to temptation and use the secret grand jury to avoid charging and prosecuting a police officer.

State prosecutors who work with grand juries know how to get them to do their bidding. There are all sorts of ways. For example, in the Michael Brown shooting case, prosecutor Kathy Alizadeh went so far as to gently lead Officer Darren Wilson through 4 hours of testimony without ever challenging him on anything he said and she provided the grand jury with a statute favorable to him that the SCOTUS declared unconstitutional in 1985. The only witnesses challenged were the eyewitnesses who said Michael Brown had his hands up. As I warned long ago before the grand jury began hearing witnesses, the process was rigged and the outcome never in doubt.

The same is true in the Eric Garner case, except we are not going to see the prosecutor’s fingerprints at the scene of the crime because he is not going to release any evidence, except maybe the cop’s testimony, because he is going to play I’ve got a secret.

We are seeing an epidemic of cops killing unarmed civilians. There was another one in Phoenix last night.

White, brown or black, male or female, adult or child, we the people are being terrorized by militarized cops and state prosecutors are using secret grand juries to protect the killer cops and escape the political consequences for their wrongdoing.

We need to eliminate their political cover by getting rid of the grand jury and then we need to demand governors to appoint independent prosecutors to prosecute these cases.

Failure to do so will eventually lead to the people taking the law into their own hands and that is a result we must avoid.

*Charlie Pierce at Esquire Magazine came up with this expression.


Grand Jury Testimony Unlikely To Be Released in Michael Brown Shooting

November 24, 2014

Monday, November 24, 2014

Good morning:

Prosecuting Attorney Bob Culloch has publicly stated that a transcript of the proceedings before the grand jury investigating the Michael Brown shooting will be released, if the grand jury decides not to indict Officer Darren Wilson.

Jason Sickles at Yahoo reports,

For three months, prosecuting attorney Robert McCulloch has said he would seek a rare court order from Judge Carolyn Whittington immediately releasing nearly all evidence should Ferguson Police Officer Darren Wilson not be charged. Grand jury proceedings usually remain secret.

“We’ve asked the judge to do that, and the judge has agreed that she will do that, if there is no indictment,” McCulloch said during a radio interview with KTRS in September. “There’s no probably about it, it will be released.”

On Sunday, however, the court said, “Judge Whittington has entered no such order and has made no such agreement,” according to director of judicial admnistration Paul Fox.

I do not believe Judge Whittington will order the evidence released.

Grand jury proceedings are secret in order to protect witnesses from potential public criticism, condemnation and retaliation. Not even their identities can be disclosed, much less their testimony, especially in an extremely controversial case like this one where threats to kill have been uttered and public officials are preparing for a war to break out. The situation is so tense that Governor Nixon has preemptively declared a state of emergency and called out the National Guard.

Under these circumstances, where public disclosure of witness identities and testimony could be a death sentence, I cannot imagine that a judge would lift the veil of secrecy. I certainly would not risk people’s lives to provide political cover for McCulloch’s decision to try Wilson in secret.

There is only one way to handle this case properly and that is to charge Wilson with murder and accord him a public trial with due process of law.

To be clear, I have never believed McCulloch was operating in good faith.

Since August 9th when Darren Wilson killed an unarmed Michael Brown at noon on a quiet residential street in Ferguson before witnesses who described an execution, he has been working diligently to protect Wilson by shepherding him through a secret grand jury investigation.

I believe he knew the transcripts would not be released to the public, but chose to assure everyone that they would be released in order to place public attention on the judge who would refuse to release them and thereby conceal his misconduct.

Voters need to get rid of this racist schemer next time around.


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

November 18, 2014

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.


Grand Jury decision in Michael Brown shooting will be illegitimate

November 13, 2014

Thursday, November 13, 2013

Good morning:

St.Louis County prosecuting attorney Bob McCulloch, aided and abetted by a compliant news media, is intentionally violating the public’s First Amendment right to know whether Officer Darren Wilson killed Michael Brown in self-defense or murdered him.

Since August 9th when Michael Brown died in the street and six eyewitnesses said he had his hands up when he was shot, there has been probable cause to believe the officer murdered him.

In essence, he is defending the officer and concealing what he is doing by trying Michael Brown in a secret grand jury proceeding where he controls what they get to consider while his minions selectively leak evidence that is spun in a manner favorable to the officer.

For example, Mother Jones reports today,

The autopsy, which was leaked to the St. Louis Post-Dispatch, revealed Brown had been shot in the hand at close range with Wilson, putting into question whether Brown had had his hands up in the air, as some witnesses claimed.

(emphasis added)

The italicized portion of the statement is false. Dorian Johnson, who was with Brown, stated that Brown received a gunshot wound to his hand fired at close range inside the vehicle while the officer was seated holding Brown with one hand and a gun with other. Johnson’s statement is consistent with the gunshot residue found on Brown’s hand and the bullet wound described in the autopsy report.

The wound to Brown’s hand and the presence of the gunshot residue does not make it more or less likely that Brown’s hands were up when the officer shot and killed him after getting out of his vehicle and chasing Brown down the street recklessly squeezing off shots in a crowded residential neighborhood. To suggest otherwise is at best grossly irresponsible.

Let’s return to basics.

The purpose of the grand jury is not to try this case. The purpose is to decide in secret whether there is probable cause to believe that Wilson murdered Brown. If so, the grand jury should indict him for murder. If indicted, the Sixth Amendment would come into play.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

(emphasis supplied)

Last week the Arizona Court of Appeals reminded Maricopa County Superior Court Judge Sherry Stephens about the importance of public trials in the Jodi Arias case, such that despite the defense request to exclude the media and the public from the courtroom, the public has an overriding First Amendment right to know what is going on in her resentencing hearing. That is, the public and the media cannot be excluded.

The public’s right to know what is happening at any given time and what the government is doing is protected by the Freedom of the Press Clause in the First Amendment.

Secret trials are prohibited by the First and Sixth Amendments. Yet, that is exactly what is happening in St.Louis and the news media is aiding and abetting that secret proceeding.

Since the prosecutor determines what evidence to present to the grand jury, the grand jury proceedings are secret, no judge is present, and the rules of evidence do not apply, we do not know what evidence has been presented or the quality of that evidence.

Only a fool would believe the grand jury is getting an objective look at the evidence, given the selective leaks by ‘unnamed officials’ that only favor the officer.

The prosecuting attorney, who has taken an oath to uphold and enforce the law, has violated the public’s right, which is our right to know what is going on.

There is no way that a secret grand jury proceeding can ever substitute for a public trial, ever.

The grand jury’s decision will be illegitimate and not entitled to any deference or respect.


The Grand Jury investigation of the Michael Brown shooting has been hopelessly corrupted

October 23, 2014

Thursday, October 23, 2014

Good morning:

The Los Angeles Times is reporting this morning that the United States Department of Justice has condemned the selective leaking by “unnamed officials” of information provided to the grand jury investigating the Michael Brown shooting as an attempt to improperly influence public opinion. According to Andrew Hart at the Huffington Post, Attorney General Eric Holder is ‘exasperated’ by the selective leaking.

I am more than exasperated. I am disgusted because I have never seen anything this blatant.

Yesterday, I asked who is responsible for this over-the-top effort to influence public opinion.

Only one answer makes any sense.

I accuse Bob McCulloch, the St.Louis County Prosecuting Attorney, the office that he directs and supervises and for which he is accountable, and the Ferguson Police Department and Officer Darren Wilson of conspiring to selectively leak information that is exclusively within their possession, custody and control in order to influence public opinion in favor of Officer Darren Wilson, who shot and killed Michael Brown.

The grand jury should have indicted Wilson for second degree murder two months ago because no one can credibly deny that probable cause (i.e., reasonable grounds) existed to believe that Wilson murdered Michael Brown.

Wilson’s self-defense claim revealed for the first time by the leakers is a laughable self-serving tangle of scripted nonsense designed to fit the known facts.

We have a name for that. We call it subornation of perjury and it is a felony.

Today, we need to ask the next question.

Is there any reason to believe that the blatant and shocking effort to improperly influence public opinion in favor of Darren Wilson by selectively leaking information to the print media and spinning it in his favor is not also being used to influence the grand jury not to indict him for second degree murder?

Is the nation not being groomed and conditioned to passively accept a grand jury decision not to charge Wilson?

We are witnessing such massive corruption and abuse of the grand jury that its decision next month not to indict Wilson will have no legitimacy.

The people responsible for corrupting the grand jury need to be identified, prosecuted, sentenced to prison and disbarred.

The whole world is watching this wretched perversion and it’s time to end it.

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Thank you.


St.Louis Prosecuting Attorney Bob McCulloch is subverting justice in Michael Brown case

October 4, 2014

Saturday, October 4, 2014

Good morning:

I write today to clarify the role of the prosecutor and grand jury in the Michael Brown murder investigation.

State grand juries have jurisdiction to investigate and charge people with state crimes committed within the county in which they are located. State or county prosecutors submit cases to them for consideration. Grand juries can also initiate their own investigations by subpoenaing witnesses, but they rarely do that.

Federal grand juries work the same way, but they deal with with federal crimes committed within the federal district in which they are located.

Jurisdiction to charge and prosecute drug offenses overlaps because both state and federal statutes have criminalized drug crimes. To avoid doubling up, the feds handle the more serious drug cases and the states handle the less serious ones. By seriousness, I am referring to the amount of drugs involved.

Jurisdiction rarely overlaps in murder cases because jurisdiction in murder cases depends on where the crime was committed. For example, the State of Missouri has jurisdiction to prosecute Darren Wilson for killing Michael Brown, but the feds do not since the shooting did not happen on federal property, such as a military base. But they would have jurisdiction to indict him for committing a hate crime or violating Michael Brown’s civil rights, since they have jurisdiction to charge those crimes wherever they are committed.

Federal prosecutors in the Central District of Florida, which is where George Zimmerman shot and killed an unarmed Trayvon Martin, apparently have decided not to seek an indictment charging Zimmerman with a hate crime or a civil rights violation.

A St.Louis County grand jury has jurisdiction to indict Darren Wilson because the shooting happened within that county.

There is no statute of limitations in murder cases. Therefore, if the grand jury’s term expires before it decides whether to indict Darren Wilson, a new grand jury can be convened to continue the investigation.

As I see it, St. Louis County Prosecutor Bob McCulloch does not want to prosecute Darren Wilson for murdering Michael Brown, so he is deliberately dragging his feet to prevent the grand jury from indicting him.

I have reached that conclusion because I can think of no valid reason why Wilson has not been indicted. Approximately ten witnesses who do not know Brown, Wilson or each other have all described Wilson shooting Brown after Brown stopped running away, turned and raised his hands. No one described Brown bull-rushing Wilson, although one witness described Brown stumbling toward Wilson after being shot and dropping to the ground.

His body was 95 feet away from Wilson’s vehicle.

A grand jury need only find probable cause (i.e., reasonable grounds) to believe Wilson murdered Brown in order to indict Wilson.

Wilson should have been indicted weeks ago because there is far more evidence against him than is necessary to establish probable cause.

Our legal system is designed to have trials in cases like this so that the community can witness the legal process proceed toward a just result as we just witnessed in the Theodore Wafer and Michael Dunn cases.

Bob McCulloch is attempting to subvert that process and by doing so he is subverting justice.

The good people of Ferguson know what he is doing and they are expressing their dismay peacefully by public protest.

That could change, if he continues to subvert justice.

For more information on the role of grand juries, click on “grand jury” in the index of categories that appears in column on the right side of the web page.

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Superintendent of Steubenville schools indicted for obstructing justice in rape case

November 25, 2013

Monday, November 25, 2013

Good afternoon:

BIG NEWS out of Ohio.

The New York Times is reporting:

Michael McVey, the superintendent of Steubenville City Schools in Ohio, was indicted by a grand jury on felony counts of obstructing justice and tampering with evidence. Three other adults, including an elementary school principal, were indicted on lesser charges.

“While this started out being about the kids, it is also just as much about the parents, about the grown-ups, about the adults,” said Mike DeWine, Ohio’s attorney general, in announcing the charges. “How do you hold kids accountable if you don’t hold the adults accountable?”

Check it out.


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