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Wednesday, December 3, 2014

The Ferguson Grand Jury

This was originally posted in Eagle Rising.


Al Sharpton

As I write this, there are still nationwide protests going on to protest the decision of the Ferguson grand jury not to indict Officer Darren Wilson. Spurred on by activists like Al Sharpton, and even worse, by the New Black Panther Party, some people simply refuse to accept the result of the investigation, which was that Officer Darren Wilson acted in self defense and was in reasonable fear of his life from a 300 pound young man who was trying to take his gun away. Rather than dwell on the justification for the shooting, I want to address the reaction to the grand jury itself.

Critics point out that it was highly unusual for the prosecutor in this case, Robert McCulloch, to basically conduct a thorough investigation through the grand jury. Normally, a prosecutor presents enough of the prosecution's case against a suspect to establish probable cause and requests that the grand jury vote to charge. It was also highly unusual to allow Officer Wilson to come in voluntarily and testify. In other words, the prosecutor conducted a two-sided search for the truth of what happened that day when Michael Brown died. If anyone thinks that this was the first time a potential defendant testified before a grand jury, that is hardly the case. I once subpoenaed a suspect to testify before a grand jury when I was a DEA agent. (He came with his lawyer and took the 5th while the lawyer waited outside.) Later, he was indicted and convicted.

Because the Brown-Wilson case was so sensitive and so sensationalized with all the racial and social implications, I think McCulloch was justified in doing it the way he did. In the end, the truth came out based on forensics and eye-witness testimony. (Some of the "eyewitnesses" were revealed to have changed their stories, and in some cases, were only repeating what they had been told by others.) When it was all said and done, Wilson's version of the events was borne out.

Yet, the activists are crying out for justice. They had justice. A police shooting was impartially investigated, not only by the grand jury and local authorities, but by the FBI as well. The FBI worked hand in hand with the local authorities from start to finish. As a result, the truth was established by the evidence. That is justice.

Yet, the activists insist that the case should have been submitted to a trial where a jury would decide. Wrong. A prosecutor has two concerns when deciding whether to charge a defendant: First, does he or she believe that the defendant is actually guilty? Second, even if the prosecutor believes in the defendant's guilt, he or she must believe that enough evidence exists to convince a jury of that guilt beyond a reasonable doubt. There are times when the consensus between prosecutor and law enforcement is that the case is as good as it is ever going to get and a decision may be made to go to trial on what is acknowledged to be a tough case. However, in the case of a prosecutor not believing in the defendant's guilt based on the evidence, it would be unethical to bring charges. Once the Ferguson grand jury investigation was completed, it was clear to McCullough and the grand jury that no charges were warranted. To bring charges anyway to satisfy the public (or part of the public) would have been an injustice in itself.

To use another example, once the Treyvon Martin-George Zimmerman trial was completed, it was clear that not only did the prosecution fail to establish guilt beyond a reasonable doubt, the preponderance of the evidence pointed to Zimmerman having acted in self defense, which begs the question: Why did the state of Florida prosecutor choose to charge Zimmerman in the first place?

Politics.

As to the next issue, which is in the hands of Eric Holder and his politically corrupt Justice Department (Full disclosure- I am retired from the Justice Department/DEA.): What is there now for them to investigate? That Wilson deprived Brown of his civil rights when he killed him? Their own agency, the FBI, was a full party to the investigation. There is no federal case, and to bring one would be a further example of a corrupt and racialized Justice Department.

The entire case is a tragedy. An 18-year-old is dead because he made a terrible decision. A family is suffering, and once again, a nation is divided by its different perceptions when it comes to police-minority relations. But we must reject the irresponsible rhetoric of the Al Sharptons and the New Black Panther Party.

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