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Title: Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury
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URL Source: http://thinkprogress.org/justice/20 ... -with-the-ferguson-grand-jury/
Published: Nov 26, 2014
Author: JUDD LEGUM
Post Date: 2014-11-26 20:00:32 by Ada
Keywords: None
Views: 392
Comments: 51
On Monday, Prosecutor Bob McCulloch announced that a grand jury had decided not to indict Darren Wilson, the officer who killed Michael Brown. But that decision was the result of a process that turned the purpose of a grand jury on its head. Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years. It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented. This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia. In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson. Compare Justice Scalia’s description of the role of the grand jury to what the prosecutors told the Ferguson grand jury before they started their deliberations: And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence. As Justice Scalia explained the evidence to support these “complete defenses,” including Wilson’s testimony, was only included by McCulloch by ignoring how grand juries historically work. There were several eyewitness accounts that strongly suggested Wilson did not act in self-defense. McCulloch could have, and his critics say should have, presented that evidence to the grand jury and likely returned an indictment in days, not months. It’s a low bar, which is why virtually all grand juries return indictments. But McCulloch chose a different path.
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#12. To: X-15, lod, cynicom, ada, jethro tull (#2)
I haven't followed this case and arent that interested in it, other than to say the grand jury looked at a heck of a lot of evidence and if they concluded that the cop shouldn't be charged, I believe it. I just have one point to make on one aspect and that is, the people who supposedly gave false evidence might not have purposely done so. I wouldn't assume that a witness gave false evidence. the reason is this: Ive seen two crimes where 'what I saw' was not what was. that doesn't mean I was making shit up, and I don't think im an unreliable witness,. the first one was I was behind a car which was going southbound on a green light. after they entered the intersection a westbound car came barreling through the intersection and broadsided them, nearly knocking the car upside down. it was incredible, right before my eyes. there were kids in the car, serious inuries, etc. when the cop came I said that the victim car was definitely on the green light, which was true. but then the cop informed me that the southbound victim car actually hit the westbound car, not vice versa. the physical evidence proved it. well that was true but the fact is that the southbound car hit the westbound car because the westbound car ran the red light and drove so fast right in front of the innocent southbound car. I was wrong in who hit who, but not in the fact that the SB car didn't run any red light because I was right behind him and the light was green. My point is, This doesn't mean I was making shit up or purposely lying to anyone, as a witness. The 2nd crime I saw was an armed robbery. this black guy wearing a mask walked in to a restaurant and held up a knife to the cashier, took the money and left. two black guys who were sitting at the counter in the restaurant told police that the robber was white. I thought they must have been in on it to push the leads in a false way. the very next week, the restaurant was robbed in the exact same MO by the very same robber, who was killed by an off duty cop who happen to be eating in the restaurant. turned out that the robber wasn't a black guy at all, it was a skinny white guy, just like the two black witnesses had said the previous week. The interesting thing is that after the first robbery, three Asians who were at the table near me had said the perp was a black guy too. so the white and Asians saw a black robber, and the blacks saw a white robber. yet it was the same guy. none of us were making shit up or 'lying to cops'. its just that people are sometimes mistaken in what they see. lol "Even to the death fight for truth, and the LORD your God will battle for you". Sirach 4:28
You are missing Scalia's point. The grand jury is not there to try a case but to determine if there is reason to believe a law has been broken.
Scalia is not misinformed on the history and purpose of the grand jury.
And they found no basis for for indictment and trial. We would have had the exact same process had the outcome been reversed.
A prosecutor who convicts a cop will never convict another person because the thin blue line will not cooperate with him. McCulloch essentially presented a defense for the cop through enormous amounts of testimony. McDulloch, like all prosecutors, has to protect the cop unless the law enforcement community wishes otherwise.
Neither was the DA. Scalia is being used here as a bully pulpit.
If people are so incensed by due process, I suggest that all Black felons proceed directly to trial, bypassing the grand jury process.
It seemed to me that the jurors got to hear all the evidence available and based on that decided not to indict. McCulloch didn't push for an indictment but based on the known evidence, why should he? We are all grown ups here and we know that cops have done a lot of bad things. But I submit that if any of us was being attacked by someone twice our size and probably as strong as a horse we would shoot him too, assuming we had something to shoot him with. I think the grand jury made the right decision in this case and I am just as critical of rogue cops as anyone.
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts "When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
Yeah, a couple of laws were broken, at least two. One being the theft of nasty little cigars and the other being the assault on the little shopkeeper. No crime was committed when someone, in this case a cop, defends himself from an aggressive attack. Scalia doesn't have a point, it is not the prosecutors job to railroad someone he knows is not guilty. Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts "When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
Well said JD. We've all seen the Youtubes of cops who belong in jail, but that said, the actions of some can't be used to condemn all. Should all of our Vietnam vets be judged by the crimes of Lt. Calley? Should today's kids all be judged by the puppy tossing videos? Is every White cop who shoots a Black a racist murderer? Some here think so and that falls nicely into the laps of this socialist driven street movement we're now witnessing.
Thank you. You are correct in that the crimes of the one, the few or even the many, does not make the people who didn't commit crimes criminals. Just because some are bad doesn't mean everyone is (as you so rightly stated). I have no interest in throwing anyone under the bus who hasn't done anything to deserve it. That being said, I think the monsters who killed Kelly Thomas should be doing hard time in a hard core prison and it should be made known to all the inmates that they are rogue cops. And I feel the same way when a(ny) rogue cop does the same kind of thing, no matter who they do it to.
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts "When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
Prosecutors don't convict anyone, jurors do. Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts "When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
When I see the defenders of Brown and Trayvon moving to places like Ferguson, that will be the day I take them seriously.
LOL! I think they are all planning to move on the 31st of April.
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts "When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
McDulloch, like all prosecutors, has to protect the cop unless the law enforcement community wishes otherwise. you hit the nail on the head. McDulloch, like all prosecutors, has to protect the cop unless the law enforcement community wishes otherwise. I suspect no one here really cares for our injustice system, however it is all we have and as good or bad as any other country. The Grand Jury had 4700 pages of testimony to digest. Each had a vote, it is difficult to believe that by chance or intent that twelve people were picked that voluntarily followed orders to find no basis for indictment.
The grand jury was presented exculpatory evidence and decided to acquit. BTW a grand jury verdict does not have to be unanimous.
Prosecutors can take a dive when they wish and withhold evidence.
Are you suggesting that is what happened with this particular GJ?? If so, please cite proof and your source. "Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made and also conflicting with the physical evidence. Some were completely refuted by the physical evidence," McCulloch said
#13. To: Cynicom (#1)
#14. To: Lod (#4)
#15. To: Ada (#13)
The grand jury is not there to try a case but to determine if there is reason to believe a law has been broken.
#16. To: James Deffenbach (#10)
I thought McCulloch did a good job.
#17. To: Ada (#14)
Scalia is not misinformed on the history and purpose of the grand jury.
#18. To: Cynicom (#15)
#19. To: Ada (#16)
#20. To: Ada (#13)
You are missing Scalia's point. The grand jury is not there to try a case but to determine if there is reason to believe a law has been broken.
#21. To: James Deffenbach (#19)
I think the grand jury made the right decision in this case and I am just as critical of rogue cops as anyone.
#22. To: Jethro Tull (#21)
#23. To: Ada (#16)
A prosecutor who convicts a cop
#24. To: James Deffenbach (#22)
#25. To: Jethro Tull (#24)
#26. To: Ada (#16)
A prosecutor who convicts a cop will never convict another person because the thin blue line will not cooperate with him. McCulloch essentially presented a defense for the cop through enormous amounts of testimony.
I used to be in a hurry, then I figured out I was just getting nowhere fast.
#27. To: Ada (#16)
A prosecutor who convicts a cop will never convict another person because the thin blue line will not cooperate with him. McCulloch essentially presented a defense for the cop through enormous amounts of testimony.
#28. To: Cynicom (#27)
#29. To: James Deffenbach (#23)
#30. To: Ada (#29)
Prosecutors can take a dive when they wish and withhold evidence.
-Alex Kurtagic
#31. To: Ada, X-15, cynicom, 4 (#0)
#32. To: All (#31)
#33. To: Jethro Tull (#32)
Not sure if the sign, or the message is more horrible.
“The most dangerous man to any government is the man who is able to think things out... without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane, intolerable.” ~ H. L. Mencken
#34. To: X-15 (#2) (Edited)
I will tell you what has been completely refuted by the physical evidence, and that is Wilson's story about Brown punching him in the face. Where are the bruises, the marks, anything suggesting that happened? It isn't there. No physical evidence to show Wilson was punched by Brown. Wilson flat out lied here. "Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made and also conflicting with the physical evidence. Some were completely refuted by the physical evidence," McCulloch said.
God is always good!
#35. To: Artisan (#12)
A white guy with a dark tan in shadows can appear black from a distance. The black guys sitting at the counter were closer and that is why they knew he was white.
God is always good!
#36. To: X-15 (#30)
Not at all. This prosecutor didn't withhold anything that I am aware of. What he did was introduce exculpatory evidence which was not his job. Are you suggesting that is what happened with this particular GJ?? If so, please cite proof and your source
#37. To: RickyJ (#34)
No, he didn't. I saw the marks and bruises. They weren't disfiguring scars and his nose wasn't broken or anything like that but he did have cuts and bruises. Where are the bruises, the marks, anything suggesting that happened? It isn't there. No physical evidence to show Wilson was punched by Brown. Wilson flat out lied here.
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts
"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
#38. To: Jethro Tull (#31)
IOW Legum used a very conservative justice's opinions, and that was not fair cause he is a lefty. Ada's article is from a leftist publication called Think Progress. I linked the author - JUDD LEGUM - and his connection to this George Soros-funded effort. See above.
#39. To: Cynicom (#17)
Of course. Nothing unfair about it, though.
#40. To: Ada (#36)
So then is it the job of the prosecutor to only present evidence against someone, assuming they have any, and nothing which might show that any charges brought will be a waste of time and money? I imagine he could have gotten an indictment if he just got people to testify to the grand jury that they saw things that didn't happen and stuff like that. Is that his job? Not at all. This prosecutor didn't withhold anything that I am aware of. What he did was introduce exculpatory evidence which was not his job.
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts
"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
#41. To: James Deffenbach (#37)
Could you point them out to me, I didn't see them. No, he didn't. I saw the marks and bruises. They weren't disfiguring scars and his nose wasn't broken or anything like that but he did have cuts and bruises.
God is always good!
#42. To: RickyJ (#41)
It was on just about every newscast for a couple of days.
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts
"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
#43. To: Ada (#36)
The grand jury is smart enough to sift through everything they see and get the big picture, nobody is looking over their shoulders and forcing them to do anything. What he did was introduce exculpatory evidence which was not his job.
-Alex Kurtagic
#44. To: X-15 (#43)
If people watched the (forever) speech prior to the decision, prosecutor went over and over how the jury asked to rehear testimony, asked for clarification of the evidence; and from I could tell, did an honest job in reaching their decision. Personally, I'm ready to be over this one.
“The most dangerous man to any government is the man who is able to think things out... without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane, intolerable.” ~ H. L. Mencken
#45. To: James Deffenbach (#40)
The prosecutor makes a charge. If he believes the accused is not guilty, he should n't make the charge.
#46. To: X-15 (#43)
So you don't agree that most prosecutors can get a grand jury to indict a ham sandwich?
#47. To: Ada (#45)
The prosecutor presents the evidence to the GJ who then make a charge (true-bill), or decline to charge (no-bill) the suspect.
“The most dangerous man to any government is the man who is able to think things out... without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane, intolerable.” ~ H. L. Mencken
#48. To: Ada (#45)
You know, as well as the rest of us, that the politics of that case just about forced the prosecutor to present the case to the grand jury. After Eric Holder and Obama opened up their pie holes and the rioters were out threatening to burn the town down and kill people, do you think he had any choice to do other than what he did? And unless I misunderstood something he didn't actually "charge" anyone with anything other than laying out the options on several counts, all of which the grand jury said (through their vote of no true bill) that that was all irrelevant. The prosecutor makes a charge. If he believes the accused is not guilty, he should n't make the charge.
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts
"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat
#49. To: Ada (#46)
Off-topic and speculation. You are overlooking the FACT that this grand jury, for example, was able to look at the Gentle Giant o' Fergusons' juvenile rap sheet. They saw the totality of everything, none of us have had the chance to even see that evidence which would just further damn Mikey Brown as being a violent thug, all in favor of Officer Wilson. So you don't agree that most prosecutors can get a grand jury to indict a ham sandwich?
-Alex Kurtagic
#50. To: X-15, JD, Turtle, Cyni, all (#43)
The grand jury is smart enough to sift through everything they see and get the big picture, nobody is looking over their shoulders and forcing them to do anything. What the BROWNS on 4um fail to comprehend is that Black racist, Eric Holder, having heard and seen the entirety of the grand jury evidence, is choosing not to bring a violation of civil rights charge against Wilson. This should be a really big red flag as to the preponderance of evidence against the Gentle Giant. What he did was introduce exculpatory evidence which was not his job.
#51. To: Jethro Tull, X-15, 4 (#50)
Mikey was able to get a 3-count felony charge shortly after turning 18. His FB posts alone should have had him indicted for being a thug/punk/dumbass.
“The most dangerous man to any government is the man who is able to think things out... without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane, intolerable.” ~ H. L. Mencken
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