Thursday, November 27, 2014

Recipes for Obstructing Justice: Overloading the Grand Jury

The Grand Jury process used to secure a trial for Michael Brown in Ferguson failed.  A recent Slate article written by Dahlia Lithwick and Sonja West entitled Shadow Trial details the consequences of this failure. In it they write,
"St. Louis County prosecutor Robert McCulloch’s decision to “open up” the grand jury proceedings by including massive amounts of testimony and evidence has been decried as “highly unusual,” “deeply unfair,” and evidence that police officer Darren Wilson received “special treatment.” McCulloch’s move to include a good deal of exculpatory evidence and testimony led to a three-month, closed-door proceeding that included 70 hours of testimony, including 60 witnesses and three medical examiners. The breadth of the evidence presented to the grand jury has led many to declare that it turned the entire proceeding into something that walks and quacks an awful lot like a trial, but without many of the procedural rules that would make a trial truly fair.
This move to morph a grand jury inquiry, which is typically a short rundown of the case for the prosecution, into a trial-like parade of mountains of evidence raises serious issues about the rights of Michael Brown’s family to have a fair process for their dead son, as well as highlighting concerns about unequal treatment of different kinds of criminal defendants. But seemingly lost in this jumble of legal concerns is the fact that McCulloch’s decision to shift the truth-seeking function of a criminal trial into the secret realm of the grand jury room violated another set of constitutional rights—ours. It violated our collective public right to an open criminal justice system. And if ever there was a trial to which Americans deserved a meaningful right of access, Wilson’s trial was it. Instead, we have a post-hoc document dump."
It should be noted also that Officer Wilson was allowed to present his narrative for four hours as to what happened without cross-examination of the evidence, claims, nor he, himself. That accounts for at least 6 percent of the time to assimilate the information at face value.

But more importantly, the Grand Jury had other business to attend to as well.  So although three months sounds like a long time to deliberate but the Grand Jury met 23 times. Dividing the 70 reported hours by the 23 meetings, we get an average of 23 (more or less) 3 hour meetings.

Of the 66 remaining hours (not counting Wilson's four hours), 32 other witnesses were interviewed and their information processed at face value.  It's unclear how long any given witness testified but using simple arithmetic let's assume an hour per such witness just to gather what they had to say. That leaves 34 hours to read 22 other artefacts of information.  It should also be noted that the witness numbers go up to 64 or so meaning that some information was either discarded or remains undisclosed.

Regardless, that leaves about 12 hours for analysis of all of that to come to an important conclusion.

And let us not forget the effect that often opinionated media reports may have made outside the meeting venues.

Let's express to this ratio of face value information consumption (I) to be processed within a timeframe (T) as I divided by T.  And based on the flat arithmetic we just performed let's call the saturation of time to process this amount of information as  "overload" because the amount of information that the Grand Jury had to consider consumes nearly all of the time that was dedicated to the processing AND analysis.  The sheer complexity of cross-referencing the details of this tsunami of data precludes the possibility that the jurors who were busy with multiple other issues could fairly and accurately make any decision that could be recognised as credible.

The Shadow Trial article elaborates as to the effect of their decision based on a processing of information that daunting.

"While jurors can function as surrogates for the public and a check on government misfeasance, the court affirmed in Richmond Newspapers that by impaneling a jury, the community did “not surrender its right to observe the conduct of trials” or its ability “to satisfy themselves that justice was in fact being done.” Disclosing results alone, the court declared, will not “satiate the natural community desire for ‘satisfaction,’ ” and “an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted.” 
While the Supreme Court has never declared a right of access to grand jury proceedings, it has held that closure of pretrial proceedings that function like trials is unconstitutional. In Press Enterprise, for example, a 41-day probable-cause hearing was closed to the press and the public. Under California law, the probable-cause hearing was designed to determine whether the defendant could stand trial for the charges, much like in a grand jury proceeding. But, the court noted, the state process allowed broad introduction of evidence, meaning that it was “often the final and most important step in the criminal proceeding” and “the sole occasion for public observation of the criminal justice system.” 
Closed trials have serious costs. Brennan told us that they “breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law.” And Burger explained that “people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Furthermore, according to Burger, the “crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is ‘done in a corner [or] in any covert manner.’ ” Yet that is precisely what this strange shadow trial from Ferguson became. It may as well have been “done in a corner.”
That secrecy was not cured in any way by the after-the-fact document dump with which the prosecutors’ office released the materials considered by the grand jury. Certainly giving all of us access to the materials created the appearance of a wholly transparent and open process. But it seems to have had largely the effect of reinforcing people’s beliefs. Michael Brown’s supporters insist he was an unarmed kid, killed by a trigger happy white cop, and Wilson’s supporters insist he was justifiably defending himself from an animal who was poised to kill him. By dumping all of the evidence and allowing us to arrive at our own conclusions, absent any context or process or ability to judge the credibility of witnesses, we have been handed the criminal equivalent of one of those choose-your-own-adventure books, in which we can all find an interpretation that conforms to our pre-existing ideas.
In the end, we all got to bear witness not to a fair and open trial, but to parts of it that do not add up to openness, fairness, or justice. We cannot believe in the fairness of a process we cannot see, and we should not be led to believe in the fairness of a process because a prosecutor’s office asserts that we have seen all we need to."

In an article called "Justice Scalia Explains What Was Wrong with the Ferguson Grand Jury" our suspicions that something is awry gain traction,

"Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.
It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.
This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.
In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson.
Compare Justice Scalia’s description of the role of the grand jury to what the prosecutors told the Ferguson grand jury before they started their deliberations:
And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.
As Justice Scalia explained the evidence to support these “complete defenses,” including Wilson’s testimony, was only included by McCulloch by ignoring how grand juries historically work.
There were several eyewitness accounts that strongly suggested Wilson did not act in self-defense. McCulloch could have, and his critics say should have, presented that evidence to the grand jury and likely returned an indictment in days, not months. It’s a low bar, which is why virtually all grand juries return indictments.

It becomes obvious that the responsibility for advocating for a trial is McCullough's  responsibility. But McCullough does not perform his role as a prosecutor.  His behavior and action is to functionally overload the Grand Jury in two ways.  First, by drowning them in the sheer volume of information and second by his own apathetic inaction as prosecutor.

In essence this represents a passive obstruction of justice whose plausible deniability is that he, as prosecutor, did not withhold any information from the Grand Jury (though even that is presumptive on our part).  What is more disturbing is whether or not this kind of pseudo-legal tactic represents a threat to all such police violence cases.  McCullough is either very individually clever in a way that subverts the Justice System from working or he represents one instance of a broader dismantling of the Justice System by special interests.

The fact that this tactic is a repeatable pattern for police violence cases across the country should be of deep concern far beyond the borders of Ferguson, MO.

#Ferguson #GrandJuryOverloadTactic #GrandJury

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