One of the things that bother me about media coverage of seminal events like the grand jury decision on the Michael Brown-Darren Wilson case is the role that self-aggrandizing, preening "experts" play in forming public opinion with not just the blessing, but the license of the major media outlets both electronic and print. In the case of the Ferguson, Missouri shooting of Michael Brown by officer Darren Wilson of the Ferguson police, the grand jury convened for the sole purpose of determining whether Wilson should be prosecuted for the shooting made its decision last week, and rioting was the consequence. Notably, the police seem to have managed the public discord much better than they did when the initial lawlessness occurred in conjunction with the legitimate protest demonstrations that developed at the time of the shooting, which, by the way, were accompanied by looting, which has nothing to do with protest in my opinion. And then, as now, the opinions have flown with cognate righteous indignation in abundant supply, but this time the sanctimony is over the legal process that resulted in the decision not to try the police officer, and for the most part, the criticism of the process has been misinformed, even in the case of the putative experts hired by the media...the grand-standing, high profile lawyers and social critics whom the media can't seem to distinguish from those who actually know what they are talking about.
The function of a grand jury is to determine whether there is "probable cause" to prosecute someone accused of a crime. Everyone agrees on that because it is in black and white in the law. That's what grand juries do; they determine whether there is probable cause. But no one seems interested in explaining to the public--especially the public in Ferguson--what probable cause is. This is what Black's Law Dictionary, the single most authoritative source for definition of legal terms, says in its definition of probable cause:
Reasonable cause; having more evidence for than against. A reasonable ground for belief in the existence of facts warranting the proceedings complained of. An apparent state of facts found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and proper), which would induce a reasonably intelligent and prudent man to believe, in a criminal case, that the accused person had committed the crime charged. (Black's Law Dictionary, Fifth Ed., p. 1081.
The first sentence really says it all, because the standard of proof--that is the quality of the evidence that must be produced for a conviction--in a criminal case at trial is proof beyond a reasonable doubt. At the grand jury level however, the standard of proof is lower: a preponderance of the evidence, or as Black's puts it, "more evidence for than against." The purpose of a grand jury is not to bring people to trial. It is to determine whether the state should bring the person in question to trial because in layman's terms, there are more indications that he is guilty than there are that he is not. So, the complaining over the way in which the prosecutors in Missouri put the case before the grand jury based on the pontifications of "legal experts" who aspire to media celebrity is not justified by the fact that an indictment was not delivered by the grand jury. Indictment is not the grand jury's job. Fact finding is, and indictment is permissible only if the facts found justify it. In Ferguson, a grand jury determined that they don't. It has nothing to do with the fact that the proposed defendant was a cop, and by the way, I have no love for them either. I have had my own occasions to resent them, and I am white, so I can only imagine what a black man or woman feels. But cops are entitled to the same due process as are the rest of us, and Darren Wilson got his. That's all that happened in Missouri; a man got his due process rights. There was no cover up, and no one benefited from bias in his favor. My point is that the indignant experts all seem to feel that the prosecutor should have brought the case for the purpose of indicting Wilson rather than for the purpose of finding out whether he should, and while that may be the way grand juries work in fact, it is not what is intended for them. And while prosecutors single-mindedly look for conviction, that is not--in my sixties-radical opinion--what they should be doing. The state has all the power in a criminal prosecution. The defendant has only rights that circumscribe that power. That is why the standard of proof applies to the prosecutor's burden at trial, not the defendant's. The fact is that the most common miscarriage of justice in this country may be the mainstream course of our criminal justice system in the form not of prosecutorial discretion, but of prosecutorial fixation on conviction without concern for justice.
Don't misunderstand me. It is not the job of the prosecutor to look out for the defendant. That's the defense attorney's job. But in a grand jury proceeding, there is no defense attorney. In fact, there is no defense at all, though the grand jury in this case saw evidence produced by the defense team of the suspect, courtesy of the prosecutor. And then there is this to consider. Darren Wilson as the proposed defendant had a right to remain silent, and any defense attorney will tell you that he almost never counsels his client to give up that right. But Wilson did so, and he testified before the grand jury...a thing that I would never have allowed if I had been representing him. It's like giving up one chance out of two to be absolved.
So, when you consider how you should react to the Ferguson grand jury's decision not to indict one of the community's cops, ask yourself what you would have wanted for your son or daughter had he or she been a cop in Ferguson and been accused as Wilson was. This wasn't the Rodney King case in which there was video tape of the police beating a victim. And Michael Brown was no Rodney King anyway.
Your friend,
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