Why Ferguson grand jury was needed

[mystery-ak]

http://www.cnn.com/2014/10/22/opinion/callan-ferguson-grand-jury-michael-brown/

Why Ferguson grand jury was needed
By Paul Callan
updated 11:29 AM EDT, Wed October 22, 2014

Editor's note: Paul Callan, a CNN legal analyst, is a former New York homicide prosecutor and a senior partner at Callan, Koster, Brady, Brennan & Nagler LLP, a New York City law firm that litigates both criminal and civil cases. Read Callan at CallanLegal.blogspot.com. Follow him on Twitter: @PaulCallan. The opinions expressed in this commentary are solely those of the author.

(CNN) -- If the local grand jury brings no charges against police Officer Darren Wilson in the case of Michael Brown's killing, street protests in Ferguson, Missouri, are inevitable. Demonstrators angry about Wilson's shooting of the unarmed black teenager in August already decry the grand jury's secrecy and "lack of transparency." But for those who believe that the grand jury procedure is some sort of cop and prosecutor conspiracy to trample the rights of minority citizens, a little background on this hallowed institution might be in order.

Although prosecutors are often accused of controlling grand jury proceedings, the institution was actually created by the Founding Fathers to provide a wall of citizen protection against overzealous prosecutors. It is a section of the 5th Amendment of the Bill of Rights.

The colonists were tired of their British overlords' abuse of law enforcement and were intent on making sure that ordinary citizens would have to approve indictments in any federal criminal case in the newly minted American democracy. The Founding Fathers agreed so thoroughly about the need for the buffer of the grand jury against law enforcement abuse that it was one of the least debated provisions of the U.S. Constitution.

George Washington, James Madison and Thomas Jefferson would surely be mystified that requiring a citizen review and approval of a criminal indictment would be considered a violation of civil liberties, as some protesters in Ferguson might believe.

In Missouri, bringing a case before a grand jury in a felony case is optional -- prosecutors could have chosen to conduct a probable cause hearing before a judge. Although this would be an open proceeding, a single judge would be making the decision about whether to permit an indictment against Wilson. The prosecutor here believed that a decision of this importance should be left to the collective judgment of the citizens of the St. Louis County grand jury, rather than a randomly selected judge whose motives could easily be attacked and questioned.

Members of the public often find the workings of a grand jury mysterious. In most states, the grand jury sits for a month or more, hearing snippets of many cases each day. The cases are presented more as snapshots than feature-length presentations. The prosecutor generally streamlines the case to obtain an indictment, if that's what he or she wants, without revealing too much evidence, which would go in the transcript of the proceeding. This transcript will be turned over to defense attorneys and the prosecution has no desire to help the defense.

Grand jurors have the right to ask for additional evidence and even to ask their own questions, but most rely on the prosecutor to present the evidence. It is for this reason that a former judge once said "a prosecutor could get a grand jury to indict a ham sandwich."

This is quite true, because the prosecutor often becomes a trusted friend to the members of the grand jury. A lot of cordial off-the-record remarks unrelated to the case are exchanged, as is normal in any place where people work together daily. I, as a prosecutor, can remember the click of knitting needles as a grandmotherly grand juror worked on a sweater while awaiting the presentation of the next murder case. "Is this a good one, Mr. Callan?" she would ask. My reply would be, "You'll have to wait for the evidence."

Make no mistake though, grand jurors often rebel and proceed on their own independent course. This happens particularly in high-profile cases like this one. In such cases, a wise prosecutor will present as much evidence as possible, revealing both sides of the case. Knowing that the grand jury transcript may someday be released and scrutinized, he will seek to create a record that demonstrates fairness and objectivity in the presentation of the case. Let us hope that this has been done in St Louis.

But as in "Game of Thrones," the cops are perceived by most grand jurors as the sentries on the Wall, protecting law-abiding citizens from the forces of violence and disorder. The perception of minority groups from aggressively policed neighborhoods outside "the Wall" may be entirely different. But unlike "Game of Thrones," the King can be removed by democratic vote and the sentries replaced.

Street protests will not accomplish this, but voting will.

In this country, the path to power proceeds through the ballot box rather than street demonstrations. Instead of attempting to dispense with the law of the grand jury and to seek unlawful conviction by mob sentiment, the most extreme demonstrators in Ferguson might be wise to remember the words of my favorite lawyer, Sir Thomas More, as recreated in the movie "A Man for All Seasons."

More was the chancellor of the exchequer under Henry VIII who chose death rather than dishonor. In the scene where his daughter's suitor, Roper, suggests that it is proper to do anything, including tearing down all laws, to defeat the "devil," Thomas replies:

"Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, man's laws, not God's!

"And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

[rangerrebew]

Here is another reason from the democrat mouthpiece, CNN

Concerns arise about prosecutor in Michael Brown case
 

By Leigh Ann Caldwell, CNN

updated 12:48 PM EDT, Wed August 20, 2014



STORY HIGHLIGHTS
 Any criminal case in Michael Brown's shooting rests with prosecutor Bob McCulloch
Some have little confidence that he will be aggressive in prosecuting police
They are asking for him to step aside and for a special prosecutor to be named
NEW: An attempt will be made on Wednesday to present evidence to a grand jury
 
 

   
Share your photos, videos and opinions about the protests in Ferguson with CNN iReport. For local coverage, go to CNN affiliates KMOV, KSDK, KTVI and KPLR.

(CNN) -- While protesters in Ferguson, Missouri, are demanding justice for the killing of Michael Brown by police, questions are being asked about the man who at the moment is responsible for pursuing any prosecution and whether he can be impartial.

Some residents and community leaders contend St. Louis County Prosecuting Attorney Robert McCulloch has deep ties to the police and has favored law enforcement in criminal cases.

Missouri State Sen. Jamilah Nasheed launched a petition that now has more than 26,000 signatures to remove McCulloch from the case and replace him with a special prosecutor to handle any criminal case arising from the August 9 shooting of Brown, an African-American who was unarmed when killed by a white police officer.

The shooting has touched off demonstrations that have led to confrontations with police, and some looting and violence.

The National Guard was called in, President Barack Obama appealed for "understanding" and cooler heads, and Attorney General Eric Holder visited Ferguson on Wednesday to assess things. His agency has launched a civil rights probe.



Watch this video



Calls for prosecutor to recuse himself
   


Watch this video


Atty.: He surrendered before 'kill shot'
   

Watch this video


New video shows moments after shooting
 
McCulloch, however, has indicated that he is going nowhere and plans to do his job.

CNN has sought to interview him, but the request has not been granted.

But in a radio interview with with McGraw Millhaven on KTRS, McCulloch promised a comprehensive and fair investigation.

"We will be presenting absolutely everything to this grand jury. Every statement that a witness made, every witness, every photograph, every piece of physical evidence. Absolutely nothing will be left out so the grand jury is making their decision based upon absolutely everything and we'll go from there," McCulloch said Wednesday.

The grand jury will be given evidence as early as Wednesday, a process that could last until the middle of October, McCulloch said.

Critics question McCulloch's dedication to a fair outcome and some have said he has moved too slowly.


View my Flipboard Magazine.

The officer "should be charged and arrested. It's been over a week now," Patricia Bynes, the Democratic Party committeewoman for Ferguson Township, told CNN. We are "motivated to have a transparent case that's accountable to the community and to make sure justice is done at every level," Bynes said.

5 things to know about the Brown shooting

Bynes said McCulloch's ties with police in the county could cloud his judgment.

McCulloch's father was a police officer and was killed on the job in 1964 by an African-American man, when McCulloch was 12, McCulloch's spokesperson Ed Magee confirmed to CNN. In addition to his father, McCulloch's brother, an uncle and a cousin all served with the St. Louis Police Department, and his mother worked as a clerk at the department, Magee said.

McCulloch, who as a teenager lost a leg to cancer, made it his career ambition to become a prosecutor. He was quoted by the St. Louis Post-Dispatch as telling a reporter, while first campaigning for the office: "I couldn't become a policeman, so being county prosecutor is the next best thing."

McCulloch has no plans to step aside and Magee said it doesn't have any impact on how he will handle the current case.

"I have absolutely no intention of walking away from duties and the responsibilities entrusted in me by the people of this community," McCulloch said during the radio interview.

While the Justice Department is conducting its own civil rights investigation, Ferguson elected officials are concerned about the local investigation. McCulloch has overseen controversial cases before, some including police officers and black suspects.

Complete coverage of the Brown shooting

The petition being circulated points to a 2000 incident in which two suspected drug dealers were killed by two police officers, McCulloch never brought charges against the officers, concluding they acted in self-defense. A subsequent federal investigation found that the men were unarmed and not moving in the direction of the officers, but because the officers felt endangered, the investigation found that the shootings were justified, the St. Louis Post-Dispatch reported.

"He doesn't have the fortitude to do the right thing when it comes to prosecuting police officers," Nasheed said on CNN's "Newsroom" on Tuesday.

Chris King, editorial director at the St. Louis American, an African-American publication, said McCulloch has already "manipulated" the Brown case by the way he is releasing information. The St. Louis County Police released a convenience store video from just minutes before Brown's death that showed a person who resembled Brown stealing a box of cigars.

"All of this information should have come out all at once in group. By leaking out in pieces, he is encouraging this kind of speculation," King said on CNN's "New Day."

Concerns about McCulloch arose again after Missouri Gov. Jay Nixon replaced the St. Louis County Police with the Missouri State Highway Patrol for security last week because he said the initial law enforcement response to the shooting was excessive. McCulloch told CNN affiliate KMOV that the governor had "no legal authority" to make such a move.

Why no arrest yet?

Upsetting to Ferguson residents, Missouri State Sen. Maria Chappelle-Nadal said, is that Darren Wilson, who has been identified as the officer who shot Brown, has not yet been arrested or charged. He is on paid administrative leave. It is up to the grand jury to determine what charges, if any, will be placed on Wilson.

"I am concerned because my constituents are concerned," Chappelle-Nadal told CNN. She said protesters carry signs or post signs in their yard demanding that McCulloch step aside. "They say this could have been me and if they killed someone they would immediately be in jail."

But Philip Holloway, a criminal defense attorney who previously was a police officer and a prosecutor, said the fact that Wilson has not yet been charged or arrested is because he could have been acting in self-defense. Evidence must be analyzed before an arrest is made or charges are brought.

"Police officers have no more or less of a right to self-defense" than private citizens, Holloway said.

Autopsy results enough to charge officer, Brown family attorney says

Magee, the county prosecutor's spokesman, said, "The people of St. Louis County have faith in Mr. McCulloch and his ability to carry out his duties."

McCulloch has been prosecuting attorney since 1991, and has been reelected to four-year terms ever since. He overwhelmingly won his primary on August 5, just four days before Brown's death. He had an opponent for the first time since his 1994 campaign, facing off against an African-American woman, Leslie Tolliver Broadnax. She raised just $13,450 compared to McCulloch's $361,000, according to the Missouri Ethics Commission.

Friction between McCulloch and the governor

The governor addressed concerns about McCulloch.

"He's an experienced prosecutor, and this is his opportunity to step up," Nixon said Sunday on CNN's "State of the Union." "It's important we get this right. This is a big matter."

Late Tuesday night, he issued a statement saying he is not asking McCulloch to recuse himself but that it is up to McCulloch to remove himself from the case.

"There is a well-established process by which a prosecutor can recuse themselves from a pending investigation, and a special prosecutor be appointed," Nixon said. " Departing from this established process could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution."

McCulloch slammed Nixon's statement, saying he needs to "man up" and decide if he wants him to stay on the case.

"It's the typical Nixon doublespeak," McCulloch said on KTRS. "He says nothing and he's ducking."

http://www.cnn.com/2014/08/19/us/ferguson-prosecutor-mcculloch/index.html

The government, through their toadies at CNN have been priming the riot pump since Aug. and have made a big issue of a white prosecutor who should recuse himself, in their words.

[Cyber Liberty]

http://www.cnn.com/2014/10/22/opinion/callan-ferguson-grand-jury-michael-brown/

Why Ferguson grand jury was needed
By Paul Callan
updated 11:29 AM EDT, Wed October 22, 2014

Editor's note: Paul Callan, a CNN legal analyst, is a former New York homicide prosecutor and a senior partner at Callan, Koster, Brady, Brennan & Nagler LLP, a New York City law firm that litigates both criminal and civil cases. Read Callan at CallanLegal.blogspot.com. Follow him on Twitter: @PaulCallan. The opinions expressed in this commentary are solely those of the author.

(CNN) -- If the local grand jury brings no charges against police Officer Darren Wilson in the case of Michael Brown's killing, street protests in Ferguson, Missouri, are inevitable. Demonstrators angry about Wilson's shooting of the unarmed black teenager in August already decry the grand jury's secrecy and "lack of transparency." But for those who believe that the grand jury procedure is some sort of cop and prosecutor conspiracy to trample the rights of minority citizens, a little background on this hallowed institution might be in order.

Although prosecutors are often accused of controlling grand jury proceedings, the institution was actually created by the Founding Fathers to provide a wall of citizen protection against overzealous prosecutors. It is a section of the 5th Amendment of the Bill of Rights.

The colonists were tired of their British overlords' abuse of law enforcement and were intent on making sure that ordinary citizens would have to approve indictments in any federal criminal case in the newly minted American democracy. The Founding Fathers agreed so thoroughly about the need for the buffer of the grand jury against law enforcement abuse that it was one of the least debated provisions of the U.S. Constitution.

George Washington, James Madison and Thomas Jefferson would surely be mystified that requiring a citizen review and approval of a criminal indictment would be considered a violation of civil liberties, as some protesters in Ferguson might believe.

In Missouri, bringing a case before a grand jury in a felony case is optional -- prosecutors could have chosen to conduct a probable cause hearing before a judge. Although this would be an open proceeding, a single judge would be making the decision about whether to permit an indictment against Wilson. The prosecutor here believed that a decision of this importance should be left to the collective judgment of the citizens of the St. Louis County grand jury, rather than a randomly selected judge whose motives could easily be attacked and questioned.

Members of the public often find the workings of a grand jury mysterious. In most states, the grand jury sits for a month or more, hearing snippets of many cases each day. The cases are presented more as snapshots than feature-length presentations. The prosecutor generally streamlines the case to obtain an indictment, if that's what he or she wants, without revealing too much evidence, which would go in the transcript of the proceeding. This transcript will be turned over to defense attorneys and the prosecution has no desire to help the defense.

Grand jurors have the right to ask for additional evidence and even to ask their own questions, but most rely on the prosecutor to present the evidence. It is for this reason that a former judge once said "a prosecutor could get a grand jury to indict a ham sandwich."

This is quite true, because the prosecutor often becomes a trusted friend to the members of the grand jury. A lot of cordial off-the-record remarks unrelated to the case are exchanged, as is normal in any place where people work together daily. I, as a prosecutor, can remember the click of knitting needles as a grandmotherly grand juror worked on a sweater while awaiting the presentation of the next murder case. "Is this a good one, Mr. Callan?" she would ask. My reply would be, "You'll have to wait for the evidence."

Make no mistake though, grand jurors often rebel and proceed on their own independent course. This happens particularly in high-profile cases like this one. In such cases, a wise prosecutor will present as much evidence as possible, revealing both sides of the case. Knowing that the grand jury transcript may someday be released and scrutinized, he will seek to create a record that demonstrates fairness and objectivity in the presentation of the case. Let us hope that this has been done in St Louis.

But as in "Game of Thrones," the cops are perceived by most grand jurors as the sentries on the Wall, protecting law-abiding citizens from the forces of violence and disorder. The perception of minority groups from aggressively policed neighborhoods outside "the Wall" may be entirely different. But unlike "Game of Thrones," the King can be removed by democratic vote and the sentries replaced.

Street protests will not accomplish this, but voting will.

In this country, the path to power proceeds through the ballot box rather than street demonstrations. Instead of attempting to dispense with the law of the grand jury and to seek unlawful conviction by mob sentiment, the most extreme demonstrators in Ferguson might be wise to remember the words of my favorite lawyer, Sir Thomas More, as recreated in the movie "A Man for All Seasons."

More was the chancellor of the exchequer under Henry VIII who chose death rather than dishonor. In the scene where his daughter's suitor, Roper, suggests that it is proper to do anything, including tearing down all laws, to defeat the "devil," Thomas replies:

"Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, man's laws, not God's!

"And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

Good Lord, if the author had poured any more syrup on that, I'd be a statistic in the Great Maple Sap Flood of 2014.