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The Ferguson Problem

Let’s talk about Ferguson. No, not about the deep social problems that create fear and distrust among African Americans about the law enforcement agencies that are supposed to keep their streets safe. And, no, not about a pattern of racism and discrimination that means that 1 in 3 African American males are in contact with the criminal justice system at any particular time.

Let’s talk about the Grand Jury Problem.

What is a Grand Jury?

A grand jury is an, often secret, group of citizens who have been called by the government to be tools of the prosecution. Historically – as in ancient English history – grand juries served as checks on government power.

A criminal case could only be brought if a grand jury agreed with the Crown that person had probably committed a crime. A petit jury (or petty jury) would then hear the trial and decide whether the government had proved its case beyond a reasonable doubt.

In the last century, the grand jury as devolved into a tool of the prosecution such that in all countries that have inherited the English system of criminal justice, only the United States continues to have grand juries.

The phrase, “a grand jury would indict a ham sandwich in the death of a pig,” is meant to capture the truth that grand juries almost always indict, or return a “true bill of indictment.”

In the past 6 years in Wake County, I have only had one grand jury not indict a client. And in that case, the prosecutor, sure of her case, put the matter before a second grand jury, at which point my client was indicted on charges of armed robbery. We won that case at trial, but not after the client spent nearly 6 months in jail.

The problem with grand juries is that in most jurisdictions, they are secret and forbid the defendant from putting on any evidence. Consequently, grand juries only hear the prosecution’s side of the case. Given that there are no rules of evidence, hearsay is allowed, and evidence that is otherwise admissible at trial is often admitted in a case brought before a grand jury.

In fact, because grand juries (at least in North Carolina) are secret and no record is kept, a defendant can’t even learn whether a witness lied before a grand jury.

There is effectively no check on a grand jury.

So, then, what purpose do grand juries serve?

Grand Juries are Tools of the Prosecution

A grand jury has subpoena power, and can compel testimony that the State may not otherwise be able to get. But, more importantly, in controversial cases where the prosecutor may not necessarily want to charge a crime, a grand jury is a useful method by which the prosecutor can deflect criticism for prosecuting.

Whether Darren Wilson committed a crime, I do not honestly know. I do know, however, that had he not been a police officer, with all the privileges that affords, he would have been indicted, and it would not have taken 25 days of testimony over 3 months before a grand jury to do it.

That would’ve put the case, ultimately, before a trial jury to decide whether, after listening to all of the competent evidence under the rules of evidence, he had committed a crime.

Just. Like. Everyone. Else.

The problem is that saying the Grand Jury in this case did not indict, and therefore essentially shifting responsibility to those 12 anonymous people, makes the system seem even more rigged.

And, again, it creates the illusion that this was a fair and transparent process.

Should Darren Wilson Have Been Indicted?

Yes. Under the modern grand jury system, where a ham sandwich can be indicted, Mr. Wilson should’ve been indicted.

If the argument is that there was no probable cause to indict Darren Wilson, then let’s start truly imposing that standard on the rest of the criminal justice system, where people are routinely arrested and charged without probable cause, and courts uphold those arrests because, hey, let’s have a jury decide their fate!



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