Without getting into the politics of this issue, I want to look at the legal process behind police violence investigations.  Here are seven things to consider:

1.  Police and law enforcement are the only people in our country who are authorized to use violence as part of their jobs.  If you and I stopped at Super America and found someone robbing it, we have no right to stop and, potentially, kill the robber.  Therefore, police are held to a different standard than the rest of us if they happen to kill someone while doing their jobs.

2.  If there’s a question about a killing, such as occurred in Ferguson, Missouri, the local prosecutor could call a grand jury to look at the case.  The prosecutor would gather evidence from the officer, other police, and any citizen witnesses.  Each of these people would be called to testify before the grand jury to help the grand jury decide, like Ferguson, can cops can be held responsible.

3.  The grand jury proceedings are held in secret.  These aren’t jury trials like we’re familiar with and see on TV.  The statutes of all the states establish the process for grand juries and most, as far as I know, are always held in secret.  Why?  It’s to protect potentially innocent people since, before the grand jury meets, no one has been charged yet.

4.  The most important thing to understand is that the standard of proof for a law enforcement person is different from that used with any other citizen.  Since the officer is allowed to use deadly force, the question becomes: was he justified in using deadly force under the circumstances?  Can the cop be held responsible—only will happen if the grand jury decides he acted beyond a justifiable level.

5.  The system, as a result, is tilted toward law enforcement.  Even in the Rodney King case, where many of us saw the video and were flabbergasted that a jury found all the cops not guilty of excessive brutality, it was probably because the police are held to a different standard.  The same was true in Ferguson, Mo.

6.  Is this a good idea?  Can cops ever be held responsible for going beyond their legal bounds and killing people?  Many think that a cop’s job is so difficult and dangerous, we as a society should give them this wide-ranging power.  Others, feel the police abuse their powers all the time and should be reined-in.

7.  Here’s a good analysis for more ideas thttp://http://www.nytimes.com/2014/12/08/nyregion/grand-juries-seldom-charge-police-officers-in-fatal-actions.html?_r=0

What do you think?

The post Ferguson–Can Cops be Held Responsible? appeared first on Colin T. Nelson.

1.  Perceptions.  The different perceptions between white clients and clients of color was astounding.  As a white person, I was often surprised at the attitudes of my minority clients—they were so different from the way I saw the world.  For instance, white defendants assume they will get fair treatment by the criminal justice system.  Clients of color assume they will get screwed—again.  White defendants talked about taking personal responsibility while clients of color talked about “The Man” and how no matter what they did (with personal responsibility) they would still get screwed.  White clients, although they didn’t like the police interfering with their criminal lives, accepted the authority and felt the police played fair with them.  Clients of color didn’t trust the police and could tell me endless stories of their family members who had been harassed, beaten, or killed by police.  Sounds like Ferguson, MO, doesn’t it?

2.  Unintended bias in the system.  Here’s a good example of bias from a practice that is intended to be fair but has the effect of treating people differently.  When people are arrested and make their first appearance in court, a carefully drafted questionnaire is used to recommend bail levels to the judge.  The questions are ones that wouldn’t surprise any of us: Are you a home owner?  How long have you lived at your present address?  Do you have a job?  How long have you worked?  Are you married?  Unfortunately, for many clients of color, these questions must be answered “no.”  They are poor, unemployed, must move around, and take whatever jobs they can get.  And since the levels of unemployment are higher among communities of color and home ownership in the same group is lower, of course they score badly on these bail evaluations.  Even if they pose no greater risk than a white defendant, the effect to is keep more people of color in jail.  These are the kinds of things that must frustrate people of color in Ferguson, MO, for instance.

3.  Poverty.  I know, it’s always used as an excuse.  It is true that many people are poor but still do not commit crime.  But here’s a startling example of something I experienced in my work.  In the late 70′ and early 80’s, Native American people made up a significant percentage of the criminals in the courts.  Suddenly, by the lat 80’s they had all disappeared.  Gone.  Today, it is rare to see a Native person in the court system even thought their population is high in Minnesota.  What happened?  The casinos opened.  That’s the only thing I can see that made a difference—these “criminals” got jobs and money—none of it provided by the government.  Could it be something as simple as that?  If people of color had jobs and money, maybe there would be a reduction in their presence in the criminal justice system.

I don’t pretend that these ideas will provide answers for tragedies like Ferguson, MO, but maybe my experiences can help others try to understand—from both sides—what this terrible divide is between the races and the criminal justice system.

The post 3 Ideas From Ferguson, MO. 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?

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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.

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