Only police are authorized to use deadly force in our communities.  If any of the rest of us killed someone, we’d be charged with murder.  Traditionally, most prosecutors used a grand jury to determine if the use of deadly force by police was a “reasonable use of force under the circumstances.”  A grand jury is made up of random citizens chosen to hear the case.  Unlike a jury trial, the grand jury meets in secret and hears testimony and evidence presented by the prosecutor.  The accused person (the cop) is not present nor is any defense lawyer present.  The grand jury makes a decision to either indict the accused or not.  It’s important to remember the purpose of the grand jury is not to find guilt or innocence.  It’s only to determine if a person should be charged with a crime.

California has already banned the use of grand juries in police shooting cases.  Today, in Minnesota, local prosecutor Mike Freeman said he would change 40 years of practice and not use a grand jury in the shooting of a local man.  http://video.startribune.com/freeman-no-grand-jury-in-jamar-clark-case/372243011/

Why would a prosecutor use a grand jury?

1.  It removes the decision-making from the elected prosecutor.  Especially, in difficult cases—like police shootings—the prosecutor could hand-off the case to a grand jury and avoid having to make a difficult decision.
2. In some cases, like first degree murder in Minnesota, the case must go to a grand jury for a charging decision.  In the police shooting cases, either the prosecutor or a grand jury can make that decision.
3. It avoids pressure from political groups or protesting groups.  Since the grand jury meets in secret, they are insulated from the pressures of the media, protesters, and politics.  In a democracy, we don’t want the mob to make decisions in such serious situations.

Why get rid of a grand jury?

1. The hearings are in secret and many people don’t trust the institutions.  Especially, when cops are the potential accused, many groups feel the system is biased in favor of the cops.  They point out that of all the grand jury hearings in the country about police shootings, few, if any, cops are indicted.
2. If an elected prosecutor makes the decision and the community becomes upset, they can always vote the prosecutor out of office.
3. By bringing the case out of the secrecy of a grand jury proceeding, the process certainly seems more transparent and fair.

What do you think?

The post Use the Grand Jury When Police Shoot People? appeared first on Colin T. Nelson.

First of all, what is a grand jury?  Unlike a 12 person jury in a trial, the grand jury has 23 members who meet in secret and hear evidence presented by a prosecutor.  The defendant is usually not called nor is a defense lawyer present.  The jurors may question the witnesses and the prosecutor.  After hearing the evidence, they choose to either indict the suspect or not.

Opponents of the grand jury system for reviewing possible police misconduct say:

1.  The proceedings are in secret and not open to the public
2. The prosecutor can influence the grand jury and will take the side of the police
3. None of the evidence presented at the hearing will be made public unless the suspect is indicted
4. The recent history of grand jury hearings in Minnesota about police misconduct have resulted in no indictments

Here’s an editorial that supports retaining the present system:  http://www.startribune.com/grand-juries-serve-justice-in-police-cases/369194291/  It’s written by someone who served on a grand jury.

Here are some legal reasons we should keep in mind when deciding to keep the present grand jury system.

Of all citizens, only police are legally justified to use deadly force.  If I kill my neighbor, I will be charged with murder.  But legislatures have carved-out an exception for law enforcement—they may use deadly force in a reasonable way in the discharge of their duties.  So, their conduct is measured by a different standard.

The proceedings should remain secret.  The purpose is to avoid mob rule or to charge innocent people just because the media or the public want an indictment.  After all, when the prosecutor charges a citizen, it is done in secret—the prosecutor doesn’t share any evidence until the case goes to trial.

Opponents say few, if any, cops are indicted.  They forget that the standard for a cop accused of murder is different than for me.  The grand jury looks at the cop’s actions decides if the cop acted in a “reasonable manner under all the circumstances.”  We need to retain that standard.  Otherwise, no police officer will do their job.  They’ll worry any time they’re trying to enforce the law and someone is killed the cop will be indicted.

Of course, it’s a tragedy when anyone is killed—even a criminal.  But there are times when this action is justified.  There are times when the rest of us are threatened by dangerous criminals.  We need police who are willing to act in those situations to protect the rest of us without worrying about being indicted.

What do you think we should do?

The post Abolish Grand Jury for Police Behavior?? appeared first on Colin T. Nelson.

What happened?  What does the Grand Jury really do?  Let’s continue with some interesting points:

1.  What did the Grand Jury consider in Ferguson, MO?  They heard over 60 witnesses.  The prosecutor called all these people.  It sounded like he tried to cover every detail.  He would also instruct the Grand Jury about what the legal definition of various, possible homicide crimes could be, such as manslaughter or murder in the first degree.  The jurors had to apply the evidence to the legal definitions.  After days of deliberating, they decided the evidence did not fit any of the legal definitions for a crime to have been committed.  No indictment of Officer Darren Wilson.

2.  When we look at the news, it appears that Office Wilson was armed and Michael Brown was not—how could the Grand Jury come back with the decision they did? Because under most state laws, the prosecutor must present evidence that the officer acted with “malice and without a good-faith belief that the shooting was justified.”  It’s a tough burden to overcome and obviously, the Grand Jury felt the evidence didn’t overcome the burden.  They didn’t issue an indictment.

3.  If the Grand Jury in Ferguson, MO had issued an indictment, is that the same as a finding of guilty for Officer Darren Wilson?  No.  if the Grand Jury had indicted Office Wilson of manslaughter, for instance, he would be presumed innocent until proven guilty in a regular trial before twelve new jurors.  He would have the right to not testify and would have a defense lawyer—things he didn’t have before the Grand Jury.

4.  Do the citizens of Ferguson, MO have any alternatives now?  They could go to the federal prosecutor and try to get a civil rights criminal charge filed against Officer Darren Wilson.  It’s an accusation that he deprived Michael Brown of his civil rights—to life.  However, the burden on the prosecutor here is even more difficult—it essentially requires proof beyond a reasonable doubt that Officer Darren Wilson intended to deprive Michael Brown of his civil rights.  A tough hurdle to get over.

5.  Is the Grand Jury a fair process?  This is really the question the angry people in the streets are asking.  People who worry about uncontrolled police violence, don’t think so, of course.  I don’t know the answer to this question but consider this: the prosecutor chooses what evidence to present, which witnesses to call—or not call.  He also instructs the jurors on what the law calls for and is alone with them in secret.  There aren’t any defense defense lawyers to challenge or correct the prosecutor.  Is there be a possibility the prosecutor could sway the Grand Jury one way or the other?

What do you think?

The post What About the Grand Jury in Ferguson, MO? Part II appeared first on Colin T. Nelson.

I’ve worked as a prosecutor in the past. Unless you’ve been one, it’s hard to know what’s really happened.  Let’s look at several things from “behind the scenes:”

1.  What was the purpose of the Grand Jury In Ferguson, MO?  The listened to evidence and made a decision if a criminal homicide had been committed.  If they had decided one had been committed, they would’ve “issued an indictment,” which would’ve charged Officer Wilson with a crime.

2.  How do Grand Juries start?  Within the county where an alleged crime occurred, the court can order the creation of a Grand Jury  These are people picked from pools of eligible citizens just like a regular jury.  If any of you have ever received a notice for jury duty, it could also be for a grand jury.  Although a regular jury is composed of 12 people, a Grand Jury doesn’t have to be limited to 12 people.  Almost always, it’s the local prosecutor who starts the process by asking the court to call for a Grand Jury.

3.  Where do they meet?  Usually, in the local courthouse or in the prosecutor’s office.  In my county, the prosecutor has a large room lined with chairs and has a big open space in the middle for witnesses.  They meet in secret.  The only people present are the jurors, a court reporter, the prosecutor, and any witnesses the prosecutor calls.  This is not like a trial on TV.  The suspect may be called as a witness or not.  It sounds like Officer Darren Wilson was called.  He is not entitled to a defense lawyer and must appear on his own to be questioned by the prosecutor.

4.  Why is it held in secret?  It’s an attempt to avoid any outside influences.  For instance, in many states the media is allowed to be in the courtrooms during regular jury trials.  Does that influence the outcome?  Who know, but in the case involving a Grand Jury, an attempt is made to avoid any influence by outside forces.  Also, if the Grand Jury decides not to indict, the reputation and details of the accused person’s life remain secret.

5. What happens during the process?  The prosecutor picks the witnesses and the evidence the Grand Jury will hear.  This could also include autopsy results, forensic evidence, expert testimony, etc.  The jurors cannot call any witnesses but (unlike a jury trial) they can ask the witnesses questions.  After all the evidence has been heard, they vote whether or not to issue an indictment.  In Ferguson, MO, they listened to about 60 witnesses and still came back with no charges.

Next post, I’ll go further into the secret details of what goes on “behind closed door” and what alternatives are left for the citizens of Ferguson, MO.

The post What About the Grand Jury in Ferguson, MO. Part I appeared first on Colin T. Nelson.