Wednesday, November 26, 2014

Ferguson: It's all about Prosecutorial Discretion

In Ferguson, Missouri, a grand jury refused to indict white police officer Darren Wilson for shooting an unarmed black youth, Michael Brown this past August 9. There has been a whiff of impropriety about the proceedings. 

Appearance of Impropriety

Lawyers are schooled to "avoid the appearance of impropriety."  The St. Louis County prosecutor, Bob McCulloch, has failed to avoid the appearance of impropriety in how he has handled the Darren Wilson inquiry.  It's a significant professional breach. 

Why does the proceeding feel improper? First, context matters.  The police and power structure in Ferguson are overwhelmingly white even though Ferguson has been a majority black area for the past fifteen years. The white police and power structure in Ferguson engages in racial profiling, police officers target blacks disproportionately, blacks are incarcerated disproportionately nationwide.

Here is a helpful article on some of the background in Ferguson. I highly recommend Jim Schutze's take on this as well. 

The prosecutor of St. Louis County who instigated this failed grand jury proceeding has dealt with 14 police shootings in the last decade--and from all these cases he never brought charges against anyone. This white prosecutor's father was a policemen killed on duty by a black man. By all appearances, McCulloch's deep police roots have interfered with his proper pursuit of justice for the black community in police shooting cases.

The Role of the Grand Jury

Eric Citron has a very helpful article at Scotus blog.

Twenty years ago in United States v. Williams the U.S. Supreme Court established the rule that prosecutors are not required to present exculpatory evidence to a grand jury, even if it is directly contrary to the prosecutor's theory of guilt. The role of the grand jury, said Justice Scalia, is not to determine guilt or innocence; it's role is simply to determine whether there is enough evidence that a conviction is possible.  The dissenting view by Justice Stevens, that one of the roles of the Grand Jury is to stand as a check on hasty, oppressive, or malicious prosecutions, was rejected by the court.  As a result, grand juries almost always indict. The rare exceptions are when a prosecutor doesn't want them to. 

In this case, McCulloch's office apparently made a decision ahead of time that they did not want an indictment. They then proceeded to cross-examine what would be prosecution witnesses, they presented the coached and one-sided testimony of Darren Wilson to the Grand Jury, and (as I understand it) they made no recommendation of what the grand jury should charge.

The result was a foregone conclusion and was a matter of prosecutorial discretion.

Here is Citron:
"When a prosecutor really wants an indictment, you would not expect the grand jury process to look anything like what happened in Darren Wilson’s case. The prosecutor would have no obligation to put forward the conflicting eyewitness testimony, or introduce pictures of Officer Wilson’s injuries – although grand jury members could ask for them if they somehow knew they existed. Instead, the prosecutor could put forward only the first few witnesses corroborating his own theory, along with the evidence that Wilson fired ten shots from a substantial distance away. Eventually, all the exculpatory evidence would have to be shared with the defense before trial, under a line of cases that started over fifty years ago with Brady v. Maryland."
How Should a Prosecutor Exercise Discretion in a Police Shooting Case

Prosecutors have tremendous power whether to charge, and what to charge.  In the 80's and 90's the country veered right and got tough on crime. In California we implemented 3-strike rules, nationwide we declared war on drugs, and we reduced the discretion of judges in sentencing.  The law imposed long jail and prison terms for drug related offenses, and legislators removed discretion from judges to mitigate harsh outcomes in particular cases. As a result our prison population has exploded.


This tough-on-crime policy has very disproportionately affected people of color.  It's a national disgrace.

In a recent article in the New York Review of Books, Jed Rakoff wrote about Why Innocent People Plead Guilty  The article points out how our tough-on-crime sentencing laws, which removed sentencing discretion from judges, has tremendously empowered prosecutors.  As Citron explains:
"Once charges are on the table, the prosecutor has enormous leverage in bargaining for the kind of plea he wants – a case like Wilson’s, for example, might even include the threat of the death penalty. And indeed there has been a lot of coverage of how prosecutors use their charging authority (which goes more or less unchecked by the grand jury) to bring hugely punitive indictments that allow them to simply bargain for the sentence they want, without ever having to prove guilt beyond a reasonable doubt. One of the critics has actually been Justice Scalia himself." 
So if the Grand Jury does not act as a check on prosecutorial discretion, how should prosecutors exercise their discretion in cases like the Michael Brown shooting?  Well, surely, we want them to exercise it wisely, and in a manner that does not persecute, or harass, as Justice Stevens suggested.  But there are competing values. There is reason to be sympathetic with cops, as McCulloch obviously is.  There is reason for prosecutors not to put people through the ringer of a trial if they don't believe in their heart of hearts that they are guilty of the offense, or that they will actually obtain a conviction.  On the other hand, society cries out for justice; in matters of societal import, society deserves a complete airing of the facts in a public trial.

When I was a deputy prosecutor in Seattle in the 1980's it struck me how the evidence in your typical lower level criminal case (burglaries, thefts, assaults, drunk driving) tended to be much stronger and clear cut than evidence in the most high profile, grizzly homicides.  In low level crimes, witnesses are upstanding civilians, there frequently are confessions, and there almost always is strong direct evidence.  Low level crimes are not charged unless the evidence is strong and the prosecutor is confident a) the defendant did it, and b) there will be conviction at trial.  By contrast, high profile cases are often charged with much flimsier evidence, when conviction is not certain, and even when the prosecutor may not be convinced of guilt.

A high profile grizzly murder will be charged despite the fact that the evidence is purely circumstantial, the witnesses sketchy (dead or from the margins of society), and the theory of the case exotic (e.g. teeth mark evidence).  Grizzly murders of a prominent family in their home on Christmas Eve cry out for prosecution.  If there is enough evidence that a conviction might be obtained--the case is charged, even if there is room to doubt guilt.  The defendant will have the opportunity to air a full defense, will have assistance of counsel, will have access to all potentially exculpatory evidence that the prosecutor might have in his or her possession (under a long line of Supreme Court cases), and he will have the advantage that the burden of proof is "beyond a reasonable doubt."

The right to confront witnesses, the right to cross-examine, the rules of evidence, the fact that the prosecutor can't hide the ball, and the burden of proof are deemed sufficient to put individuals through the ordeal of a trial when there is evidence of guilt that could result in a conviction--even if the defendant might not be guilty; even if the prosecutor may not be convinced of guilt.  The prosecutor puts on the case because public justice requires it, because the society needs it.... even if there are questions.

That, and because the prosecutor knows he or she won't be reelected if there is no trial.

In low level crimes, if the case is weak prosecutors drop it. In high profile cases, even if the case is weak, prosecutors tend to pursue it.  In other words, when there are reasons for doubt, there is no requirement to charge just because a conviction might be obtained.  The prosecutor has to exercise discretion.

In this case, McCulloch exercised his prosecutorial discretion not to indict.  The case is not clear cut. The law is in favor of self-defense, in favor of cops, so there might not be a conviction at a trial.  As such, what we have in Ferguson is not an ABUSE of prosecutorial discretion. What we have is discretion that was exercised in a manner that elevated the (legitimate) value of protecting cops and giving them the benefit of a doubt over the competing value of serving the NEED of the black community in Ferguson (and some sense the nation as a whole) to air all the facts in a full trial.

If we grant that the facts are close enough, that it is not an ABUSE of prosecutorial discretion not to indict, then it boils down to a political decision. The white voters in St. Louis County who have elected and kept McCulloch in power over all these years of not indicting cops who shoot unarmed civilians undoubtedly support his exercise of discretion in this case. The black community in Ferguson strongly disagrees with McCulloch's exercise of discretion in this case. So do many of us  around the country who are concerned about police misconduct, about our disproportionate jailing of blacks and people of color, and our lack of government support to communities of color.

What we have in Ferguson is not a failure of the legal system. What we have is a failure to communicate. The remedy is political.  It's up to the citizens of St. Louis county to organize and vote McCulloch out of office.  I hope they so in the next election. 

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