Old white people ‘whitesplaining’ Ferguson grand jury get it wrong

The Green Valley News has published a collection of Letters to the Editor in which old white people “whitesplain” why the use of law enforcement deadly force against an unarmed Black “thug” like Michael Brown is justified, insist that race was not a factor, and that justice prevailed in the grand jury process in Ferguson, Missouri.

These self-assured old white people — whom I suspect are regular members of FAUX Nation — fundamentally misunderstand the role of a grand jury, and sure as hell have no idea what it is like to be a person of color in America even today, 50 years after the Civil Rights Act of 1964.

Conservative icon and Supreme Court Justice Antonin Scalia explains to these old white people why they are full-o’-crap. Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury:

[Last] Monday, Prosecutor Bob McCulloch announced that a grand jury had decided not to indict Darren Wilson, the officer who killed Michael Brown. But that decision was the result of a process that turned the purpose of a grand jury on its head.

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.

Lawrence O’Donnell of MSNBC, the author of Deadly Force: The Wrongful Death of James Bouden Jr. : A True Story of How a Badge Can Become a License to Kill (1983), which was adapted into a television movie A Case of Deadly Force (TV Movie 1986), also explained last week how the Prosecutor’s Mistake Skewed The Law In Darren Wilson’s Favor:

Presenting reams of evidence that could benefit the defense of Ferguson officer Darren Wilson wasn’t the only thing St. Louis County prosecutors did to bolster Wilson’s case for escaping trial.

Prosecutors also made a mistake in the grand jury instructions that gave jurors a false impression about the law and provided Wilson with significantly more legal cover for the deadly shooting of Michael Brown than the law actually provides, according to a review of the transcript by MSNBC’s Lawrence O’Donnell.

Assistant District Attorney Kathi Alizadeh instructed grand jurors on how to decide the case based on a statute that was invalidated by the U.S. Supreme Court two decades ago. As O’Donnell points out, that statute had not been valid for the entirety of Alizadeh’s legal career. That statute said that officers can use any force they deem necessary to achieve the arrest of a fleeing suspect. It does not preclude deadly force, saying only that officers are “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.”

The U.S. Supreme Court nixed this law and others like it when it held in the 1985 case of Tennessee v. Garner that police officers could not use deadly force simply because a suspect was fleeing. They could only do so if that suspect also threatened the lives of others. [The] 1979 Missouri statute was never changed [even after being held unconstitutional by the U.S. Supreme Court].

Alizadeh realized her mistake three months after she initially presented the statute to the grand jurors and disclosed the error. But at least according to the transcript, she never told them what exactly she did wrong or what had changed. She simply told the jurors to “fold in half” the paper they had been referencing for three months and gave them a new one with different instructions.

As Georgetown adjunct law professor and legal analyst Kenneth Jost explained on his blog, the grand jurors “had in mind the prosecutors’ mistake of law that completely excused Wilson” as they listened to Wilson’s testimony. Jost concedes that this mistake was one of only a host of legal factors that may have contributed to the grand jurors’ decision-making. In fact, as ThinkProgress noted this week, it may be societal standards of “reasonableness” that dictated the outcome this case more than any particular law. But as Jost points out, “Asking the grand jurors three months later to ignore the mistake was surely a fruitless attempt to unring the bell.”

Here is a video link to the “Rewrite” segment of The Last Word with Lawrence O’Donnell. Shocking mistake in Darren Wilson grand jury.

A grand jury only determines the sufficiency of evidence in support of the charge by the prosecutor — a very minimal standard. It is not a substitute for a jury trial on the merits of the case, subject to the beyond a reasonable doubt standard in criminal trials.

One would never know this from listening to the horrendous media coverage of this case in which some commentators have even suggested that officer Darren Wilson was “acquitted.” No, he was never charged, either because of prosecutorial incompetence, or a prosecutor who made a conscience decision not to indict a member of the police force.

I am not making any judgment decisions on the evidence in this case. The evidence and witness testimony are conflicting. That is the task of a jury to sort through the evidence and testimony at trial. That did not happen in this case because the grand jury was used as a substitute for a jury trial — and that is a miscarriage of justice under American law.