- The Washington Times - Tuesday, November 25, 2014

Legal experts across the country agree that while the process that led to a grand jury’s decision not to indict Officer Darren Wilson for killing Michael Brown in Ferguson, Missouri, was unusual, it was not unfair. Rather if it was anything unusual, it was in its fairness and openness.

Lawyers and academics told The Washington Times that, despite their personal opinions on the case, which has sparked riots over police brutality, St. Louis county prosecutor Robert McCulloch sought unbiased justice in presenting the jury with every piece of evidence and then making that evidence public.

“It was the most thorough grand jury investigation that I’ve ever heard of,” said Stephen Saltzburg, a professor of law at George Washington University Law School.

Media outlets and supporters of Mr. Brown have said that Mr. McCulloch’s prosecution was unusual because he did not go in with the goal of seeking an indictment in secret, as most prosecutors do.

But Richard Kelsey, assistant dean for management and planning at George Mason University law school, said that what makes this case more unusual is that Mr. McCulloch sought justice rather than an indictment.

“More recently everyone has head the statement that ‘a good prosecutor can indict a ham sandwich,’” Mr. Kelsey said. “It is true that it is usually easy to get an indictment, but is that a just process? I would say no.”

Legal scholars say that Mr. McCulloch’s decision to release the evidence presented to the grand jury for public scrutiny was also unprecedented, since grand-jury hearings are usually shrouded in secrecy, both while going on and after the fact.

“Usually you don’t hear what evidence they considered,” Mr. Saltzburg said. “I give the prosecutor top marks in terms of transparency and accountability.”

The Brown family and their supporters argue that if the prosecutor had championed harder for an indictment, a full trial could have led to a conviction. But lawyers say in this case, a strong push to indict Officer Wilson merely based on the easier legal standard of “probable cause” would have merely set up a trial where the prosecution likely would have failed to get a guilty verdict based on the much stiffer “beyond a reasonable doubt” standard.

“Even if you could have gotten an indictment, what good does it do to get an indictment and then have your case thrown out,” said Gabriel Chin, a professor at the University of California Davis School of Law.

“You go ahead and do a weak grand jury presentation, but if you do it in a case that’s actually weak, how are you going to feel when you are prosecuting a case that you really shouldn’t be prosecuting,” Mr. Chin said.

Lawyers say in general, grand jury cases are subject to pro-prosecution bias because a district attorney will try to summarize their case to obtain an indictment, possibly hiding some of the evidence. Meanwhile, the accused has no right to an attorney, to present evidence on his behalf, or even to know that his indictment is being considered.

“What you hope is that it’s a neutral process, but it’s not when you don’t have anybody in there for the other side,” said Lee Cox, a Texas-based criminal defense attorney and a former prosecutor.

Mr. Cox argued that in many cases where a grand jury is seeking an indictment for a police officer, the prosecutor will try to protect the officer.

“Officers hardly ever get indicted for anything. It’s common of the prosecutor and the police, they are in law enforcement together. So the public’s perception is that nothing is going to happen to the officer anyway because they are both in law enforcement,” Mr. Cox said.

Criminal defense attorney Guy Fronstin agreed that there is an “incestuous” relationship between prosecutors and police in grand jury proceedings but admitted that in this case that relationship did not impede justice.

“The grand jury system is a one-sided Kangaroo Court, which virutally always indicts since jurors hear the prosecutor’s version of events and rule without having ever heard from the defense,” Mr. Fronstin said.

“However, due to the brotherhood between prosecutors and police officers, when a police officer is the target of a prosecutor’s case, it is almost predetermined that the officer will not be indicted. The incestuous relationship between prosecutors and officers did not come into play in Ferguson because there simply was not enough evidence for the grand jury to find probable cause that Officer Wilson committed a crime; the grand jury got it right,” he said.

Although the jury did not indict Officer Wilson on state homicide or other charges, the case is not necessarily over.

The federal government could charge Officer Wilson with civil-rights violations, and the Brown family can still bring civil lawsuits against Officer Wilson and/or the Ferguson police department

“The family could sue and get their day in court,” said Mr. Saltzburg adding that although football star O.J. Simpson was actually acquitted of murder charges, he was still found liable for the deaths of Nicole Brown Simpson and Ronald Goldman in a lawsuit.

“I’d be surprised if they didn’t bring [to a civil court] the public stance that they took that this was unjustified,” Mr. Saltzburg said.

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