Two questions for Jeff Gamso, Scott Greenfield and others with like experience

I have a lot of respect for Jeff Gamso and Scott Greenfield. I also have two questions for them. Others with like experience should chime in as well. But before I ask those questions, I urge you to read Close Your Eyes and Pretend Really Hard from Jeff and The Ferguson Lie from Scott.

I have absolutely no experience with grand juries except to the extent that I have picked several of them as the Chief Judge, I have compelled testimony before grand juries and extended immunity in doing so, and I regularly took grand jury returns when I was a magistrate judge. But, I have never represented a client before a grand jury, and I have never been a prosecutor who has presented evidence before a grand jury. I know next to nothing about the standards prosecutors typically employ at the federal level when deciding to seek an indictment before a grand jury.

With the foregoing by way of introduction, I ask Jeff and Scott and others with similar experiences the following two questions:

1.  Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

2.  If you were a “straight up” federal prosecutor, would you seek a federal indictment of Mr. Wilson?

Jeff and Scott and others experienced in this area have absolutely no obligation to answer my questions. But inquiring minds want to know.

RGK

69 responses

  1. The first question strikes me as easier to answer. The “no true bill” from the Ferguson grand jury puts the problem squarely on AG Holder’s plate. If he refuses to present, based upon the grand jury outcome, he then ties his integrity to McCulloch’s presentment. If he pursues a civil rights indictment, as in Rodney King, he will be tarred as doing so because of racial affinity, cop hating and/or ignoring the evidence. But either way, it’s a curse to Holder.

    The second question is harder for me, as I’ve never been a prosecutor, and I don’t know the “real” evidence available in the case. The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law.

    And if, having done the foregoing, the jury acquits, then I will take comfort in knowing that I did what I believed the law allowed and required of me.

  2. SHG,

    Thank you for responding. I appreciate it. My intuition, founded on very little, suggests that Holder is cursed. If I were him, I’d get out of town and wait for the new AG to make the call. She strikes me as much more of a “real” prosecutor by way of experience than Holder. That, too, is rank speculation on my part. All the best.

    RGK

  3. Not a federal prosecutor; just a simple ol’ lawyer. However, I’ll bite:

    I agree with shg that the answer to the first question is “curse”. If the Missouri grand jury had indicted, then Holder could simply point to the ensuing state prosecution as a reason for not going forward with seeking a federal indictment. Essentially, it would have given Holder an “easy out”, especially if a state court trial had ended with a guilty verdict. Now, no matter what Holder does will subject him to criticism.

  4. I’m not part of the Greenfield/Gamso juggernaut, but I thought I’d weigh-in anyway.

    Having served as a prosecutor for a couple of years (albeit in a jurisdiction that does not use grand juries (UCMJ)), I agree that Holder is cursed. Frankly, it reminds me of any case where outside forces are passionate, outspoken, and desirous of one particular outcome.

    Where I’ve felt this is with sexual assault cases in the military. As a prosecutor, I remember recommending that a particular case not be pursued because the evidence stunk and conviction was a complete impossibility. As a result, victim advocates and others associated with that side skewered me. Then in a completely unrelated case, I recommended moving forward where the evidence was shaky, at best, but I thought it worthwhile for the system to play out. As a result, I was accused of caving to political/outside pressures by many, and I lost credibility with them. After all, why should I persecute without solid evidence?

    Of course, I’ve seen the same dilemma play out as a defense lawyer, though I am now able to watch the drama, all while having the freedom to advocate unabashedly on behalf of my client. Because of increasing pressure, I see it happening more and more–uglier and uglier.

    So, to answer your questions:

    A. Yep, cursed. Either way, prepare for hate to come your way in spades. If you’re not prepared to deal with the pressure of being a prosecutor, find another line of work. It ain’t easy, or, in many cases, comfortable.

    B. If the evidence creates probable cause, which, from my quick skim, it appears to do, you’ve got to call it down the middle and move forward. Damn the torpedoes.

    Caveat: I do find it distasteful when, in the event of a state system not securing conviction, charges are concocted at the federal level in an attempt to draw blood for the satisfaction of political agendas or crowd-fueled anger.

  5. I’ll play.

    Question 1: Holder’s position is a mess. If a federal grand jury indicts, it will look like raw politics. The black guy from the black administration going after the white cop who was, it’s been determined, just doing his job in the most dangerous of situations. If there is no federal indictment, he’ll be declared a wimp.

    He’s getting out of town one of these days, but he’ll probably be around too long to be able to punt to Loretta Lynch.

    Question 2: I’ve never been a prosecutor and don’t have a prosecutorial mind set. Nor do I know what all is out there in the way of evidence. But if there’s probable cause, I’d pursue an indictment for a civil rights violation and let the chips fall where they would at trial. That, after all, is what a prosecutor is supposed to do.

    And I notice that my answers aren’t much different from Greenfield’s, which probably isn’t a surprise.

  6. Eric,

    Thanks for providing examples of your experience as a prosecutor. They are helpful.

    I have a question for you, and others, and it is: “If you, as a prosecutor, are convinced that there is probable cause to indict, but the evidence does not establish guilt beyond a reasonable doubt, should you seek an indictment?”

    Thanks for your engagement. All the best.

    RGK

  7. Jeff,

    Thanks for playing. I am not surprised that Scott and you come down on the same place. But, I have an additional question that I posed to another commentator and will pose to you: “If as a prosecutor you are convinced that the evidence is sufficient for an indictment, but insufficient to convict beyond a reasonable doubt, should you seek an indictment?”

    All the best.

    RGK

  8. Thanks for entertaining the likes of me.

    I adopted the following viewpoint. Though, I may be in the minority of prosecutors/former prosecutors in it.

    1. If probable cause exists, then the case is a matter for consideration by a finder of fact at trial.
    2. As a prosecutor, I am not a finder of fact. I merely advocate on behalf of the government (or justice, if you believe a universal and quantifiable definition of the word exists (I don’t)).

    That’s the short answer.

    The long answer involves me appraising the various involved parties (especially the victim) of the likelihood of success at trial and possible pitfalls. Not the least of which is that this may be a long, arduous, and grueling process that results in no conviction. This, of course, might dictate pretrial strategy, amendment, or certain concessions. Ultimately, though, a PC determination, of itself, demands a determination by the finder of fact.

    Finally, I would present the evidence as it is in court. I wouldn’t embellish or try to inject something disingenuous that was not germane to the nature of the evidence. After all, most of us are not Nancy Grace.

  9. Eric,

    Thank you for your thoughtful comment. I have heard some prosecutors say that they don’t seek indictments even when there is a probable cause to believe the target is guilty of the crime when they don’t believe they can prove each essential element of the crime beyond a reasonable doubt. These prosecutors couch their arguments in both practical and ethical terms.

    Section 9-27.220A of the U.S. Attorney’s Manual apparently takes a middle ground:

    The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless, in his/her judgment, prosecution should be declined because:
    (1) No substantial Federal interest would be served by prosecution;
    (2) The person is subject to effective prosecution in another jurisdiction; or
    (3) There exists an adequate non-criminal alternative to prosecution.

    (Emphasis by Kopf)

    Thanks for your engagement. All the best.

    RGK

  10. If I’m convinced that the evidence is insufficient for a conviction then I can’t try to indict because I would be attempting to obtain a conviction of someone I believed to be legally innocent. That would be mere harassment, a clear violation of the prosecutor’s duty to do justice.

    That’s part of why there’s prosecutorial discretion. Typically, though, the issues of legal guilt or innocence are for the jury because the prosecutor expects to be able to prove the charges. That, after all, is what trials are for.

  11. Based on my 30 years as a prosecutor, I don’t believe the feds will seek an indictment against Wilson.

    This is not like the Rodney King case where it was crystal clear that the state system failed to provide Justice for a blatantly unjustified beating of an African American captured on video.

    In addition, it is my understanding that the feds worked very closely with the local authorities in investigating the Ferguson case. And the results of that quasi-fed/state investigation were fully presented to the grand jury. This should be contrasted with the King case, where there was no cooperation between the feds and Los Angeles County investigators. The state prosecution was the result of an entirely local investigation. The feds stepped in (rightfully IMO) only after the state system completely failed. That is not the case in Ferguson.

    Although Justice is in the eye of the beHolder (sorry Eric), the state system appears to have operated in a proper manner and no federal intervention is warranted.

  12. I am not sure I agree with Paul on this one. It seems to me that this case was treated differently from most cases in country, probably including St. Louis county. In a normal case, the prosecution provides evidence in support of an indictment and makes a recommendation of prosecution. In this case, the prosecutor gave ALL information to the grand jury and did not make a recommendation.

    The question is: why the difference? Is it because there was a police officer invovled? Is it because the victim was a black man?

    I agree with you that there was a good investigation. However, I think the decision to prosecute was tainted, I just don’t know why. I would treat this more as a prosecutor’s decision not to indict than a demonstrably fair grand jury proceeding.

    Based upon the facts I heard last night, I think an indictment would have been a slam dunk had the prosecutor presented the case to the grand jury in the normal manner.

  13. Judge Kopf,

    I am an interloper in your inquiry to Mr. Greenfield and Mr. Gamso, but, with your permission, I will add some thoughts.

    Justice is dictated by facts. The facts outlined last night demonstrate that the government did not have a decently persuasive case of criminal homicide against Wilson.

    Minutes before the episode, Michael Brown robbed a store; he gave the much smaller clerk a nice shove on the way out the door. Wilson got a radio alert about the robbery. Wilson saw Brown, walking nearby and fitting the general description of the robber. Wilson thus did not just “roust” or harass Brown; he investigated in the same way any officer would have.

    From there, the picture gets somewhat murkier, but this is what seems to emerge. Brown’s hand at some point got inside the police cruiser, apparently in an attempt to grab Wilson’s service revolver. The gun went off, leaving traces of Brown’s blood on the inside of the police car. At the same general time, Wilson’s face somehow got bruised and swollen.

    Brown then walked or ran away; it’s not clear at what speed. Wilson followed him, shouting at him to stop. Eventually Brown did stop and came back toward Wilson, although, again, it is not clear at what speed or in what posture. Wilson and at least one other eyewitness viewed it as a “charge” or “rush.” Other witnesses, evidently found less credible by the grand jury, described it differently.

    It was at this point, and as the huge (6’4″ 292 lb.) Brown got closer to the 5’7″ Wilson, that Wilson fired the fatal series of shots, all at Brown’s on-coming front. (Earlier, emphatic claims that Wilson shot Brown in the back, or stood over him and shot him, were proved false by forensics).

    The controlling question is whether, on these facts, a reasonable grand juror could have concluded that Wilson had an objectively reasonable fear of imminent serious bodily harm or death if he failed to use deadly force. I see no serious case that a reasonable grand juror could not have reached that conclusion.

    That’s the end of the supposed murder case. A person is not guilty of murder when a bi-racial and otherwise representative body of neutral citizens is unable — in light of the evidence of self-defense — to find even probable cause.

    It may be a harsh thing to say, but it’s true: Part of the blame here lay with a lax rearing that bred in Michael Brown the thoughts that (1) it’s OK to steal from a storeowner who’s smaller than you are, (2) it’s then OK to wrestle with (and probably punch) a cop (and maybe attempt to grab his pistol) instead of obeying lawful orders, and (3) when the cop shows he’s serious by continuing to order you to stop, charge at him.

    Michael Brown’s decisions and aggressiveness put Darren Wilson is a spot where his choices ranged from awful to worse. Things generally work out poorly is such situations, and they did here too. Michael Brown now has no future at all, and Darren Wilson will have to find a new one. In addition, he may well live a life of perpetual fear. Who among us would not be afraid if we were in his position today?

    We sometimes get an unhappy justice, and this is one such episode. Unless standards of family discipline improve dramatically, there will be many, many others. I doubt there is any “broad lesson” to be learned from this sad case of self-defense, but it there is, that’s it.

    Bill Otis

  14. #1: probably a curse as the USDOJ could have easily decided to “let the murder charge be resolved” rather than independently do anything.
    #2: No.

    I’m a state court prosecutor who has done time as a SAUSA. I’ve also decided to not charge a cop in a fatal shooting and not charge a civilian in a fatal stabbing (both calls I made myself without a grand jury). I have had about 90 felony jury trials in my career. I’d consider myself at least as knowledgeable about this as your average social media user.

    As an initial matter, almost nothing that occurs in federal grand juries is relevant to what happened here. This is not a typical federal case where the government has to establish probable cause that the defendant sold drugs, defrauded a bank, or is illegally in the country after being deported. If you have a decent investigation that is easy to do. There is a blog post floating around today about how last year in 11 cases federal grand juries return a no bill. I’m surprised it was as high of a number as it was. This case deals with a person being shot to death. That is not the kind of case that federal prosecutors or (no disrespect intended) federal judges know very much about.

    There is no dispute that the officer shot Michael Brown to death. The question is whether a reasonable person in the officer’s position would have believed he was in danger of suffering great bodily harm or death. This is quintessentially a question that any prosecutor would like to have answered pretrial by a grand jury. The grand jury is essentially a focus group. They can look at the facts and give the prosecutor the same kind of answer he’d get after a jury trial. Of course the prosecutor could have steered the case to an indictment. That would be counterproductive – you want to know how the jury will react after they’ve heard a defense.

    No experienced prosecutor would charge someone unless he or she thought there was a reasonable likelihood of obtaining a conviction at trial. When you have a file on your desk that is a tough call you have to consider how the witnesses will perform and what kind of jury appeal they will have. I have charged cases where I have thought that if my witnesses do well I will win and that if they are shaky I’ll lose. That is more art than science. There is something to be said for giving the victim his day in court, but not at the expense of charging a case that is a loser. You have a responsibility to the defendant and to the system to not charge someone just to see if by luck it will stick. You also have to consider your reputation as a prosecutor. You can’t afford to have the defense bar think you aren’t thoughtful about your cases.

    This prosecutor deserves credit for ensuring that the grand jury materials are being made public. I find it interesting that his statement that the accounts of many eyewitnesses were contradicted by physical evidence has had so little effect on those who are outraged by the no bill. If this morning you are outraged it can mean only two things: you believe that the prosecutor is deliberately lying when he says that with the whole world watching or you don’t care what the facts are. In either case that is a sad commentary on your view of the world. If you want to be outraged after you have read and considered everything, fine. Outrage this morning is based on having a closed mind.

  15. Dear Bill,

    With rare exceptions, no one is an interloper here. With your experience as a federal prosecutor,* I am particularly glad to have your insights. In fact, I would be interested in your thoughts regarding the questions I posed to Jeff and Scott. Those questions are:

    1. Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

    2. If you were a “straight up” federal prosecutor, would you seek a federal indictment of Mr. Wilson?

    All the best.

    RGK

    *Adjunct Professor of Law, Georgetown Law School. University of North Carolina, BA, 1968; Stanford Law School, JD, 1974, Ohlman Prize for Legal Writing. Professor Otis has held a number of positions in the federal government: Chief of the Appellate Division, US Attorney’s Office for the Eastern District of Virginia; Counselor to the Administrator, Drug Enforcement Administration; and Special Counsel to President George H. W. Bush. He has written several op-ed pieces on criminal law for USA Today, Forbes, the Washington Post, and US News & World Report; has been interviewed and quoted by the New York Times and the Wall Street Journal; has testified as an expert witness before Congress; has appeared on various network programs such as MSNBC’s Hardball, the O’Reilly Factor, Sixty Minutes and the PBS News Hour; and is a contributor to the blogs Crime and Consequences and Powerline.

  16. I don’t have the level of experience your question called for, but I do have a big mouth so it’s hard not to respond.

    Using the term “insufficient to convict” gives an easy out, because it too easily carries the connotation of legally insufficient. It should be easy to refuse to indict someone where the evidence is legally insufficient because, as Mr. Gamso says, that would be an attempt to convict someone you believe to be legally innocent.

    The hard cases for me back in the dark ages when I was a sex crimes prosecutor were those where I knew the evidence was legally sufficient, believed the legally sufficient evidence was true, but also believed that jurors were likely (and by likely, I mean almost certain) to acquit because why the hell would she go to his room if she didn’t plan to sleep with him. I had no hard and fast rule on those cases. I sometimes pursued them and sometimes did not, depending on a variety of factors that, in retrospect, I was far too green to truly understand or properly apply. One of those cases stands out in my memory because the jury, more concerned than I was with the fact that our married victim had willingly slept with another guy she was partying with that night but just drew the line at our defendant when he announced that he was next in line, walked the defendant in 17 minutes.

    For me, the case in Ferguson falls in that category of legally sufficient but likely to result in a defense verdict. I’ve read as much of the transcript as I could get through so far, and it seems clear that (1) there is probable cause and (2) if the jury chose to believe witnesses they would be legally entitled to believe the evidence would be sufficient to sustain the conviction but (3) knowing what I know about St. Louis County juries, the odds of them convicting a nice young officer for shooting a 290-pound dope-smoking strong-arm robber who grabbed the cop’s gun after telling the cop to STFU when nicely asked to get out of the middle of the road are roughly a million to one against. I understand why the prosecutor didn’t want to press charges in a case with a likely twofer of pissing off the cops he relies on for all of his other cases and losing at trial. I think it was BS that he hid behind a faux grand jury proceeding rather than owning the decision himself, and if I were the feds I would be inclined to pursue the case, but I don’t expect that to happen.

  17. Judge Kopf,

    As I suspect you know, it’s a dangerous thing to ask a lawyer to keep on talking.

    1. The state grand jury did no favors to Eric Holder because it left him with a lousy choice: Either cater to the President’s political base (which needs goosing, given the last election) by returning an indictment; or go with the facts, which pretty clearly establish that Darren Wilson did what any of us would have done in the same dire circumstances.

    I am no fan of Mr. Holder, but I think it likely that he has enough integrity to go with the latter. To make this less painful, however, I suspect that this will get done the same way Bowe Bergdahl is getting dealt with, to wit, keep saying “we’re gathering more facts” until the clock runs out on January 20, 2017.

    2. I would not seek to indict Wilson were I back in the USAO. The reason is simple. I think the same thing the state grand jury did, to wit, that he acted in legal (and moral) self-defense.

    Many thanks,

    Bill

  18. Judge, Like most NE lawyers, my experience of grand juries is limited but I talked with a classmate who was an Iowa prosecutor and confirmed my impression that the prosecutor’s handling of this case was odd, the point others have made. Our local prosecutors are elected and they are usually political animals. Indicting a cop in a case like this is very likely to be a game ender. The prosecutor played it smart and got what he wanted. I am not outraged, and indeed he may have by accident gotten the right result. However when race and the police are involved for a large part of our society we need more trustworthy processes. Unfortunately that has often meant federal processes, thought I think the federal courts have lost much of their patina of fairness..
    I do not know how much training small town police in MO get, but local police are not usually much beyond keystone cops. I know this is the blog of dust bowl empiricism, but in the monastery we had a large library on police behavior and this officer looks like a candidate for Watt Earp complex.
    Two added comments ,AlanO talks of the whole world watching, firstly two worlds were watching not one and for a county official his world is his county …

  19. Bill,

    I can’t help myself. I love to hear lawyers talk (and write), particularly when they are knowledgable. Thanks for answering my questions.

    All the best.

    RGK

  20. Allan,

    Let’s say we all agree that a prosecutor can get a grand jury to indict a ham sandwich. In this case, the prosecutor gave the grand jury all the evidence, made no recommendation, allowed the jurors to question and call witnesses and presented the jurors with five alternate indictments. He then released all the evidence to the public after the grand jury refused to indict.

    My question to you is this: Recognizing the high profile nature of this case, if a hypothetically unbiased, objective and experienced prosecutor did same thing, would you be critical of that prosecutor?

    This is not a trap or a rhetorical question. I am truly interested in your answer.

    All the best.

    RGK

  21. If nothing else (and I mean that), I admire Otis’ tenacity and consistency. Nothing shakes him from his talking point.

  22. I don’t know Gamso or Greenfield. I also don’t do criminal work, so I know what I learned in law school about grand juries.

    But I know I’d rather people, especially lawyers, give thoughtful opinions. That requires reading a record before opining on the record or the likely result of the record. Lawyers should never give knee-jerk reactions.

    I read the record. It took about eight hours. By the time I was done, this post was up. I’m confident neither Gamso nor Greenfield read the record.

  23. repentinglawyer,

    Blog of dust bowl empiricism? I know I should be insulted, but I can’t figure out why.

    Anyway, I don’t especially like grand juries either. I would rather a prosecutor stand up and act like a man or a woman and decide whether or not to “pull the trigger” (unfortunate metaphor) and then endure the consequences.

    All the best.

    RGK

  24. Skink,

    Fair point.

    But in defense of Jeff and Scott, I think they are talking more about legal realism than the substantive strength of the evidence. Look, they say (me putting words in their mouths), the prosecutor dumped the responsibility to indict on the grand jury consisting of a bunch of lay people without even making a recommendation. That is not the way it is normally done. If a white cop shots a black kid seven times, why is the procedure suddenly different? You don’t need to have read the record to ask that question.

    All the best.

    RGK

  25. Judge, Dust bowl empiricism is a phrase I lifted from a philosopher of science.. He used it to describe theories of science that failed to note the theory laden character of the search for facts and of the facts we find. Part leg pull and part showing off. You may have noticed that the long time prosecutors seem sure the cop was in the right, a position they would probably be taking if the nice officer had shot one of their mothers, and are sure that the prosecutor was a paragon. The defense lawyers take rather the opposite approach. Given the flaws in our state criminal justice systems that maybe inevitable. My position is that of the sad middle. CJ Taft said American Courts were an example of the justice he expected from heaven. On that issue at least he was a fool.

  26. I understand. But doesn’t one need to know the record to know whether something beyond the record, something an intellectual generality, is in the least applicable?

  27. Anon. I care not who makes my nations laws if I can but make the record. A non adversarial record totally controlled by the man who made it and released it and who probably wanted the result he got does not rank with holy writ. You do not need to spend time listening to ducks if you have always heard them quack, before you apply the intellectual generality that they quack..

  28. Intellectually, I agree with Skink. But the knee-jerk reaction at the lawyer’s table (which includes a retired judge) this lunchtime was interesting in it’s relative unanimity. Had the prosecutor charged a bill of involuntary manslaughter the grand jury would doubtless have returned it, and he would have dramatically threaded the needle.

  29. MSW sure looks like imperfect self defense if statutes are like MPC which would get to manslaughter.

  30. See Page 198, lines 17 thru 25 of Darren Wilson’s Grand Jury Testimony. Officer Wilson is 6’4″ 210 lbs, not 5’7″. Not even close. The evidence is that Mr. Otis has not, in fact, bothered to consider the actual evidence.

  31. You are correct and I was in error. Wilson is, as you say, 6’4″. He was outweighed by 82 pounds, however. Michael Brown was bigger than the average NFL player.

    That I was wrong about Wilson’s height may be taken by you to mean that I “did not bother to consider the actual evidence.” It might also mean that I got one thing wrong, but I leave you to your view, which I doubt you would claim is neutral. One thing we know is that the grand jury was, unlike you, impartial, that it had twelve sets of eyes and ears, and that it saw, heard and questioned the witnesses first hand. Did you?

  32. I don’t need to know what’s in the record to know that the process was unusual. Hell, the prosecutor said so himself. And he started that unusual process before the record was created and, presumably, without knowing precisely what it would be.

    Why the prosecutor chose the unusual process, something we could I suppose debate, cannot be determined from the record the process created.

    As a separate matter, the prosecutor’s (and much of the commentariat’s) unadulterated acceptance of Darren Wilson’s narrative as wholly true – without the adversarial testing that narrative would receive if offered at trial – undermines much of the prosecutor’s credibility. That’s not to say that Wilson was lying or even that he was just mistaken; on some points his statement obviously conformed to the physical evidence. Rather, it’s to point out that it’s hardly surprising that Wilson’s self-serving testimony supports a view that he shouldn’t be convicted. Self-serving testimony can also be true, of course, but there’s always a reason to view it with caution – especially when it isn’t challenged by cross-examination.

  33. You completely flubbed a fact central to your argument and by a significant margin. Now you repeat the argument with a different version of the “fact”–that Darren Wilson was right to fear for his life (though frankly, this is itself a red herring: a large armed police officer in an SUV should have nothing to fear from an unarmed teenager, no matter how large). Yet you continue to claim that you have no agenda, “just the facts.” That simply isn’t credible.

    We do know that the Grand Jury had 12 sets of eyes and ears. The question is what they saw and whether what they saw was appropriate to the occasion, namely to decide whether there is probable cause. It is a farce to suggest as you have that the prosecutor’s choices for how to present the evidence played no role, as Mr. Greenfield has pointed out. This was not a trial. There was no effective cross examination. There was no attempt to separate the wheat from the chafe. In fact, just the opposite appears to be true, as Mr. McCulloch did not even bother asking basic questions or probing basic issues, such as why, if Officer Wilson claims Mr. Brown ran 20 to 30 feet from the car, he was found dead 150 feet away. Or why Officer Wilson was spooked by Mr. Brown grabbing at his waistband (remarkable how many unarmed people “reach for their waistband” before being shot dead by the police) even though he had no reason to believe Mr. Brown was armed (and had testified that Mr. Brown had reached for his gun, which would make no sense if Mr. Brown had a gun). To suggest that the Grand Jury was simply “presented all the evidence” completely ignores how the system works.

    You write: “The controlling question is whether, on these facts, a reasonable grand juror could have concluded that Wilson had an objectively reasonable fear of imminent serious bodily harm or death if he failed to use deadly force. I see no serious case that a reasonable grand juror could not have reached that conclusion.” That’s actually not the controlling question at all. The controlling question is whether those “facts” were properly presented given the task at hand; and whether it even makes sense to say that those are “the facts” given the realities of the proceeding. The prosecutor’s unusual actions, such as not even recommending any charges, eschewing reasonable cross-examination, and holding a press conference attempting to discuss and balance the competing evidence considered by the jury suggests that he was not up to his task. Indeed, his “separate truth from fiction” rhetoric and discussion of the evidence in his press conference suggested that there were quite a number of issues to be considered and litigated–which is exactly the point of having a trial. Given the prosecutor’s agenda, it becomes even more difficult to say that this was simply a matter of “just the facts, ma’am.”

    Finally, even accepting your flawed premise, it’s amazing that you say “I see no serious case that a reasonable grand juror could not have reached that conclusion” given the incredible–as in difficult to believe–testimony of Officer Wilson. Here’s a “serious case” from Ezra Klein: http://www.vox.com/2014/11/25/7281165/darren-wilsons-story-side. Not worth quoting in full, but the basic point is that when an unarmed 18 year old teen lies dead on the pavement following 12 shots from the gun of a police officer whose testimony is as strange, at the very least speaking charitably, as Officer Wilson’s, it is hard to say that “just the facts” do not support probable cause for a trial. Moreover, your blind acceptance of that story and accompanying spin (including the gross misstatement of a “fact” you have treated as key to the case) ultimately demonstrates as much about your agenda and societal norms than your unfounded and uncalled for conjectures on Mr. Brown’s “lax rearing.” And what it demonstrates is not pretty.

  34. RGK,

    If I may ask a grand-jury related question – what is your opinion about the supremes ruling in United States v. Williams?

  35. Here is what the US Attorney’s Manual says on the subject (with a hyperlink to Williams provided by me):

    In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts’ supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department’s policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.

    USAM 9-11.233, Presentation of Exculpatory Evidence

    I agree with Williams and I agree with the policy presented in the Manual.

    All the best.

    RGK

  36. JNB —

    My bad. I should have learned better by now than attempt to engage with a person who has his mind made up that Wilson is Guilty as Satan, and is evading punishment only because of the Big Bad System — with an assist from slugs like me.

    So I should probably let it go. I have no power to fight your preconceptions. I will, perhaps unwisely, say a few things, however.

    1. Where is your resentment against the witnesses who told breathtaking lies in this case? The ones who said Brown was shot in the back? The ones who said Wilson stood over him pumping bullets into him? Or does your anger run only toward those who believe that the presumption of innocence still applies, even to white people? And even to cops?

    2. How easy it is for you to write that Wilson should not have feared for his life after Brown had already tried to wrestle away the gun, and minutes later, still with an 82 pound advantage, was advancing again.

    Have you ever fought someone 82 pounds heavier?

    3. Brown had just completed a strong-arm robbery and had a big-time incentive to avoid capture. Do you think this fact is irrelevant?

    4. I think it’s abundantly clear which of us has an “agenda.” Mine is filled when the grand jury hears the evidence first hand, questions witnesses on its own, and considers (and rejects) five proffered indictments, including involuntary manslaughter.

    You make it clear that your agenda is to flay Wilson, without proof beyond a reasonable doubt (or to any other legal standard) simply because — well, because why? You hate whites? Hate the cops? Have used your career to see punishment brought to the guilty (or those you take to be guilty)? Somehow I doubt it’s that last one, but perhaps you could let us know.

    Of course there’s another possibility here: You want Wilson cooked, not because of anything in particular about him or about this case, but because he’s a stick-figure representing Amerika, the Stinking Racist Cauldron. Is that it?

    5. Those of you seething that Wilson isn’t going to get hammered need to huddle among yourselves to decide whether the problem here is that (a) the grand jury was presented with too much evidence (that is, exculpatory as well as inculpatory facts), or (b) as has been the defense mantra for years, prosecutors are sleazy when they do NOT present exculpatory evidence.

    6. Would you believe I don’t get upset when people who cloak themselves in anonymity upbraid my “credibility”? The audience that hides behind the curtain is not the one I’m aiming for.

  37. From my experience as a former prosecutor, this case was not that different from how my office would have handled it. How you present a case to a grand jury depends upon how complex it is and how open-and-shut it is. We had several cases where it was clear that the issue at trial would be self-defense. In those cases, we always presented the suspects version to the grand jurors, any evidence that might contradict that version, and a summary of the law on self-defense, then left it up to the grand jury to decide whether or not to indict. Our thought was that if we could not get enough of the grand jurors to vote to indict, we would never get a conviction at trial.

  38. Pingback: Candor And Cynicism | Lawyers on Strike

  39. Judge K,

    Yes.

    My problem is that this case was treated differently. If every grand jury proceeding was handled in this manner, then so be it.

    I believe that this prosector did not believe that there was probable cause. If he did, he would have filed charges, not gone to the grand jury. IMHO, he went to the grand jury for political purposes and created a process where it was iffy as to whether a true bill would come out. In other words, he was passing the buck.

    His actions are cowardly. A prosecutor with principles would have said “I do not believe there is probable cause to indict, let alone sufficient evidence to convict.” But I don’t think that is correct. I think, based on the evidence that no (or a very few) judge would take the matter out of the hands of a (petit) jury and acquit (see my question below).

    I believe that prosecutors should not take cases to the grand jury unless they believe, at the least, there is probable cause to indict. This was simply a political ploy.

    I cannot help but compare this case those in the deep south in the first half of the last century when whites (including police officers) would kill blacks and never be prosecuted. Although this case may be different on the facts, it smacks of the same overtones.

    I would ask you a more difficult question than you asked me. If you had a case where all of the evidence was as this prosecutor presented in his statement on Monday night, would you grant a motion for judgment of acquittal?

    (BTW, this is very strange for me. I practice in federal courts (not yours and not criminal law). I am not used to the idea of these types of discussions with judges, let alone Article III judges).

  40. Not sure why the blog will not let me reply to Mr. Otis’s latest missive, but this goes to the comment below.

    My mind isn’t made up that Wilson is guilty as satan. My mind is made up from evaluating the available evidence that 1) the Grand Jury process was deliberately orchestrated to avoid an indictment, perhaps as a way of deflecting blame from a hapless prosecutor, and that 2) there was more than enough evidence to demonstrate probable cause to charge Wilson with a crime (a point on which my opinion is no different from many of the other commenters and the links offered by Judge Kopf). Whether it would have led to a conviction, I don’t know, probably not. Would the system have been a failure upon acquittal? I’m not sure. Was the system a failure this time, when we did not even get to a trial for an unarmed teenager shot dead in the street with available eyewitness testimony suggesting a crime (notwithstanding competing testimony)? Yes, absolutely. Thousands of cases go to trial every year on far less evidence (many of which result in convictions). But I’m glad to know that the next time that there is both eyewitness testimony saying that the defendant did it and eyewitness testimony to the contrary (and forensic evidence on both sides, i.e. the location of the body–calls into question Officer Wilson’s version of events–vs. Mike Brown’s blood in the car–calls into question somewhat the version that Brown was not an agressor [though consistent with the testimony that Wilson pulled in Brown]) that you’ll be fully supportive of the failure to obtain an indictment. That really is great news!

    To your other points.

    1) Wow. This is great little missive. I love how you now have tried to turn this into my hatred for white people and the cops, again, despite the complete and total lack of evidence you have for that point. Yet you are the one who immediately starts talking about how big, bad Mike Brown was “bred.” My “resentment” is to the charade that you are perpetuating: that the Grand Jury proceedings somehow revealed “the truth!” because Officer Wilson was allowed to testify and because there were competing eyewitness accounts. Newsflash: There are always competing eyewitness accounts. Moreover, had you bothered to read the link I posted, you would have seen language that actually mirrors my position: I don’t know whether Darren Wilson “lied” per se, he may not have. Or his perception of certain things may have been different. Two people see two things and often come to the same conclusions. Those who say Brown was shot in the back may not have consciously been lying, though if they were then yes, I fully resent them for having lied. Of course, again, you discount certain contradictions and facts. Why, for instance, was Mr. Brown shot in the top of the head if he was still a threat to Officer Wilson, unless he was shot as he fell forward lifeless?

    2) This one is really funny as well. I have fought with people who were 82 pounds heavier and multiple inches taller than me many times! That’s what happens when you weigh 180 as a freshman on the wrestling team and your practice partner is a 275 pound heavyweight (who also has 3 inches on you). Or when you’re a 200 pound sophmore asked to wrestle up. Or even when I got bigger in college, I often wrestled at about 240 vs. 285, and at 5’11” was often shorter. The bumps and bruises I took on a regular basis were far greater than the pictures of Officer Wilson showed. Again, so he has a bruise on his cheek and claims that he feared he would be dead with one more punch? Not credible.

    3) The robbery fact is relevant, just not very probative. Wilson’s initial stop had nothing to do with the robbery. He also later changed his story in a way to cooberate the notion that he knew of the robbery, initially saying that Brown was holding something and later referring to the cigarillos taken. That’s questionable. Why did he not refer to the item in Brown’s possession as cigarillos in the first instance? And again, to your notion of “strong arming,” I would also think it highly relevant that that was at worst what happened–a shove. Not an armed robbery. Brown was not armed. Brown was shot 12 times.

    4) Hahahaha, this one is pretty funny too. My agenda is that the system should be fair. A system in which a cop shoots an unarmed teen, there are numerous investigative deficiencies, and the prosecutor phones it in. Again, I’m glad to know that the next time a cop gets shot under murky circumstances that you will be happy with the Grand Jury proceeding in such a fashion, with a complete failure to cross examine the defendant (that could have been accomplished by tweeting, of all things: http://www.vox.com/xpress/2014/11/25/7285265/darren-wilson-grand-jury) and a lack of instruction to the jury. But wait, that would never happen. In fact, just the opposite happens.

    Your rhetoric is laughable and not worth my time. Do you think Obama is a secret Muslim too?

    5) Prosecutors are sleazy when they do not do their job. In this case, there was more than enough evidence for probable cause. It’s not that the Prosecutor presented exculpatory evidence–good job by him–it’s that set up the process to exculpate the defendant by ignoring and downplaying obvious inculpatory evidence (such as, again, by completely failing to meaningfully cross-examine the defendant. At trial, it would be incumbent on Mr. McCulloch to present the defense with the exculpatory evidence in his possession under Brady v. Maryland. Glad to hear you have apparently heard of the case.

    6) Would you believe it or not but I don’t really enjoy arguing with people on the internet. I much prefer to do it in person where I can more easily avoid the silly smears that you have perpetuated trying to paint me as some white-hating, cop-hating individual, despite a total lack of evidence. Also in person I can know for sure who I am in fact arguing with. But since I can’t here, I’m happy to go by JNB, and if that continues to bother you, well, you might as well stop posting on blogs.

    I will say perhaps, that it’s good that I’m not the audience that you are aiming for, because you sure have failed on that one!

  41. At this point, I don’t even have to ask the question. The thing speaks for itself. If Judge Wachtler’s proverbial ham sandwich had been in the dock, an indictment would have been handed down.

    The system always protects its own, and can’t even be trusted to handle criminal cases any more. And the people know it.

  42. A system that has helped reduced crime by half in a generation can be trusted a great deal more than other government systems, which have had massively smaller success at massively larger cost.

  43. I’ve spent a few hours reading / skimming the transcript.

    Pretty bizarre. In this grand jury event, the killer was invited to give evidence. He was coached, BY PROSECUTORS, on how to answer the prosecutors’ questions. The evidence was discussed with him in advance by the police and prosecutors. He was not cross examined in any critical way. The prosecutor was protecting the killer from having to face a real jury with counter evidence and a vigorous cross. Witnesses who supported the prosecutor’s version were accepted as truthful while those who gave evidence counter were either ignored or interrogated.

    There was a homicide. The opportunity lost of not going to trial, even on a relatively minor charge like invol mansl, is what’s sad.

  44. Mr Otis The Curmudgeon tends to provoke, but there is no legitimate way of talking about the criminal justice system and crime rates, you have to do it system by system, eg NY system NY results, and I doubt that your impressive cv, was that from the stud book, really justifies your rather sweeping view of other government programs. The sin you accuse others of, speaking from ideology without regard to reality seems to be yours as well.

  45. I love seeing Bill Otis, of all people, criticize someone for having made up their mind that a defendant is guilty.

    I’ve seen Otis as a blogger or commentator take the side of exactly three criminal defendants: George Zimmerman, Tom Delay, and Darren Wilson. (In fairness, there may be more; I don’t know his opinion of Oliver North, Scooter Libby, or Bernhard Goetz.)

    Outside of those cases, every defendant Otis sees is “Guilty as Satan,” so it’s a bit rich for him to accuse JNB of arguing in bad faith.

  46. — Crime rates for the United States as a whole are here: http://www.disastercenter.com/crime/uscrime.htm

    — I did not publish, or ask Judge Kopf to publish, my cv. I am grateful and lucky to have held the jobs I did and do.

    — It is not my opinion, but reality, that crime has fallen by half, nationwide, in the last generation. If you want to think that the increased use of incarceration does not account for a significant part of that, feel free.

  47. Oddly, the defendants whose side I have taken were either acquitted, had their conviction overturned on appeal, or were no-billed by the grand jury. I believe that makes them a less than representative sample.

    As for Scooter Libby, I also took his side, after a fashion. It’s not that hard to find:

    http://www.washingtonpost.com/wp-dyn/content/article/2007/06/06/AR2007060602292.html

    More broadly, you gotta love it when the defense bar complains for years that I never see things their way, and then, when I do, complains even louder.

  48. Mr Otis you rather missed the point, I was not denying that there is a figure called an national crime rate or that it has changed in a certain direction, but you went on to make an unjustified statement of causation, a starters mistake I might add when addressing the impact of policy in our federal system. To make the kind of statement you would have to show the relationship between incarceration rates by state and crime rates. I am a skeptic on this subject but your statistical ineptitude gives me pause.
    I was not mocking your cv, which is impressive for a lawyer, but doubting it relevance to your views on non lawyers subjects like other government programs or how to do criminal justice statistics in a federal system.

  49. Of course there are a number of causes of the massive reduction in crime over the last generation; I never said otherwise. Lead exposure could be one of them, sure. But the idea that the increased incarceration of people who commit crime has nothing to do with the fact that we’ve had less crime is preposterous on its face.

    Your statement that “our criminal justice system is certainly no better than it was a generation ago, and it is arguably worse” is both too general and too vague for me to discern its meaning. But by the measure that affects most people — the incidence of crime — the system is far, far better.

    For heroin dealers, muggers, child rapists and the like, it may well be worse. I certainly hope so.

  50. Mr Otis Why preposterous on its face? One can be doubtful about the relationship between rate of offence and incarceration rates. You have now gone from statistical mistakes to the announcement of self evidence truths whose only warrant is you political presuppositions. A long journey for someone who claimed only to act on facts.

  51. If you were a “straight up” federal prosecutor, would you seek a federal indictment of Mr. Wilson?

    No. And I say this as someone with experience as both a LEO and prosecutor (more the latter than former) in LE misconduct investigations, who believes (a) too many cops plan to shoot at the first hint of potential danger, and feel reasonable certain later, and (b) that closer scrutiny of police conduct has only improved law enforcement, and that we need more of it.

    Of the roughly 5,000 cases investigated by the civil rights division, about 50 are selected for presentation, usually when the conduct is egregious (i.e., Denziger Bridge) and/or ignored by the locals. Part of presentment process is just establishing the facts and credibility of witnesses under oath; as such, the presentations are less one-sided than usual. The DoJ doesn’t request an indictment in all (or perhaps for most) cases: They want proof beyond a reasonable doubt of misconduct, not Roshomon.

    We already have the Ferguson grand jury’s comprehensive findings. Unlike, i.e., NY in the late 90’s (some of which were questionable prosecutions in their own right), there are few clear facts, no history of misconduct, no cover-up, or anything else remotely sufficient to establish Wilson intentionally deprived Brown of his right to be free from unnecessary force behind a reasonable doubt.* Split-second decisions, even if mistaken or recklessly bad, especially when made while plausibly in fear for one’s safety, should not lead to a federal prosecution.

    Also, despite the stereotype of American officers as being quick on the trigger, most street officers do not discharge their firearm during their entire career. In fact, to the discomfit of the more ballistic realists, the vast majority of officers do not shoot in the face of most imminent or even immediate threats —even where they would have been perfectly justified in doing so. Frankly, a federal prosecution (especially a failed one) after a no-bill, is more likely to discourage the sort of internal reform departments should have more of. Quite the opposite. Do cops protect their own? Yes. Too much. Get over that and work with it.

    *18 USC § 242 is a 202 word sentence. Yuck.

  52. Professor Otis,

    I can deny anything for which there is little or no credible evidence. Besides, as atmospheric lead levels appear to account for virtually all of the violent “crime wave,” I don’t see why we should bother to look much further.

    I can’t think of anything we have done well. We lock up almost ten times as many per capita than Germany, and our recidivism rate is roughly twice that of Scandinavian countries. In virtually every category, our crime rate is higher than the average of developed countries. Crime is less prevalent in countries with low GINI scores (ours is a positively feudal 48, last I’ve seen). More importantly, it is logically impossible for you to conclude with confidence that harsher sentences have definitely made us safer, as we have absolutely no idea what would have happened had we adopted the Scandinavian model here.

    See generally, e.g., http://www.salve.edu/sites/default/files/filesfield/documents/Incarceration_and_Recidivism.pdf.

    Intuitively, a former prisoner who has a 20% likelihood of recidivism is going to be better for society than one who has a 50% likelihood. By increasing the length of prison sentences, all we are doing is delaying the inevitable by several years, at an appalling price tag of $80 bn/yr. (ignoring lost GDP). And this should come as no surprise: We end up releasing animals, for the most part incapable of reintegration into civil society. If they weren’t hardened criminals when they went in, they too often are when they come out. Shon is the rare exception, not the rule.

    About the only thing our system seems to satisfy is your apparent thirst for revenge. If there is a case to be made for your position, I remain blissfully unaware of it.

  53. Ethics 101: If the District Attorney didn’t believe that Wilson was guilty he should never have presented the matter to the Grand Jury at all. He takes the “heat”, if any, for the decision not to prosecute – and if that even matters because it shouldn’t – himself. Doing what he did makes a mockery of the process, and that’s why people are upset. Or one reason, anyway.

    Not to mention prosecuting someone you believe to be innocent, legally or factually, is a violation of due process of law. US v. Basurto.

    The only “out”, if let’s say there’s room for doubt in what the prosecutor believes, is to find another prosecutor who does believe Wilson is guilty and let that prosecutor present the case to the grand jury. And that isn’t really an “out”, and we shouldn’t look at it that way, and any lawyer who does needs retraining.

    The corruption at work in our profession is not just moral, it is intellectual:

    http://strikelawyer.wordpress.com/2014/04/14/truth-redux/

    But as I say, I do appreciate the candor over here.

  54. I don’t know enough to agree or disagree with your opinion on the Ferguson mess, but “Get over that and work with it.” is flippant. Criminal behavior by police is an extremely serious problem to have.

  55. In this forum? This is where we slaughter sacred cows.

    The day that I can’t be persuaded by a persuasive argument is the day I should be sent to a home.

  56. In a previous piece kindly posted by RGK, I (sort of) identified myself as a former narcotics officer turned defense investigator. While I was assigned to narcotics fairly early on, I did do my time in patrol. From the academy through my FT (field training), to patrol and then on to dope work, one thing continues to resonate and I have heard nothing of it in this debate: you never, ever let someone approach you when you are in your vehicle. You don’t just sit there waiting for something to happen, as it appears this officer did. You get out and immediately take control of the situation. If you stay inside you are trapped and your options disappear.

    I think it most likely that the following happened. Wilson sat on his ass as only a really lazy cop does. The situation quickly spun out of control and a young man died, riddled with bullets. I can think no officer I ever worked with who could condone such conduct.

  57. Assuming that Officer Wilson made the error you say (remaining in the car), that did not strip him of the right of lethal self-defense if, thereafter, he had an objectively reasonable, even if mistaken, fear of imminent serious bodily harm or death.

  58. And a taser? A baton? Drive away? I have made the shoot/don’t shoot decision three times. It’s a terrible decision to have to make. Each time I found a way around what would have been justified shootings. I don’t think you have a case of “self defense,” especially when he put himself in that position. I’d sooner take an ass whipping to wrongfully killing someone.

  59. “If you stay inside you are trapped and your options disappear.”
    I had something like this happen to me. Turns out, releasing the break and depressing the accelerator provided a tactically effective and hilarious solution.

    “Each time I found a way around what would have been justified shootings.” /
    “I don’t think you have a case of “self defense,” especially when he put himself in that position.”

    One thing I’ve seen too often is that an instructor contrives a use of force scenario, usually from his own experience, that *he* believes is a must shoot scenario; and then chastises or fails a student who doesn’t shoot or first uses lower force levels (“the suspect was clearly exhibiting dangerous conduct consistent with the use of deadly force”) without ever inquiring whether that decision may be justifiable based on the officer’s perceptions at the time. Even worse is when the script calls for an officer to actually violate TTPs (i.e., proceeding without backup), who then gets a slap on the back for shooting when he creating the very jeopardy in which he placed himself. Carl Klockers provides a couple of (possibly debatable) examples of that in his essay “A Theory of Excessive Force.”

    “I’d sooner take an ass whipping to wrongfully killing someone.”
    I feel the same, except without the adverbial modifier.

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