Ferguson, Missouri

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Re: Ferguson, Missouri

Post by AllThingsKC »

phuqueue wrote:You're making a fool of yourself in this thread, just so you know.
Fine. Change the word "liberals" to "people," and the point still stands.

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Re: Ferguson, Missouri

Post by aknowledgeableperson »

It has only two questions to answer: might a crime have been committed here, and might the accused have committed it.
And the answer might be the grand jury determined that no crime was committed, which is within its responsibility and powers. So if no crime was committed why have a jury trial?

We can go on and on, which we have, about this but just because there was a shooting it may not have been a crime. Maybe in situations like this a police officer does have an advantage if he/she testifies before a grand jury in that the law can be used to justify the shooting and therefore no crime was committed.
This is insane. A law enforcement officer shoots somebody to death and your position is that the criminal justice system is not the appropriate place to determine whether or not this act constituted a crime. Why have a criminal code at all? Let's just settle everything in the civil system!
See above.

I can take it that within the criminal justice system no crime was committed.

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Re: Ferguson, Missouri

Post by grovester »

You are completely ignoring "prosecutorial discretion". Actually, I don't think you understand it.

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Re: Ferguson, Missouri

Post by aknowledgeableperson »

In what way is it being ignored? What else in addition to this:
Prosecutorial discretion refers to the fact that under American law, government prosecuting attorneys have nearly absolute powers. A prosecuting attorney has power on various matters including those relating to choosing whether or not to bring criminal charges, deciding the nature of charges, plea bargaining and sentence recommendation. This discretion of the prosecuting attorney is called prosecutorial discretion.
It was stated a grand jury can determine if a crime was committed or not and in this case it was clear only one individual fired the shots and the grand jury did not indict with a conclusion that I take as no crime was committed with those shots. So explain where prosecutorial discretion comes in. Now, can a prosecutor still file charges if a grand jury fails to indict? I imagine so but how many times does that happen?

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Re: Ferguson, Missouri

Post by phuqueue »

aknowledgeableperson wrote:
It has only two questions to answer: might a crime have been committed here, and might the accused have committed it.
And the answer might be the grand jury determined that no crime was committed, which is within its responsibility and powers. So if no crime was committed why have a jury trial?

We can go on and on, which we have, about this but just because there was a shooting it may not have been a crime. Maybe in situations like this a police officer does have an advantage if he/she testifies before a grand jury in that the law can be used to justify the shooting and therefore no crime was committed.
This is like talking to a brick wall, except it's worse because at least the brick wall can't speak and so never said anything stupid and can't keep repeating that same stupid thing. "We can go on and on" only because you refuse to understand what a grand jury's role is in our legal system.

It's not the grand jury's place to determine whether a crime was committed, only to determine whether there is probable cause. For the grand jury to say that there's not even probable cause would mean that in their eyes there is basically no way that the act could have been criminal. Yet it's plainly clear that killing somebody could be a criminal act. Self-defense, law enforcement use of force, etc are all defenses that are raised at trial and should not be presented to or considered by a grand jury. In front of a grand jury is not the place to "justify" a shooting -- even if it actually was legally justifiable. This is why it is so extraordinarily easy for a prosecutor to get an indictment (if he wants it). If the act was clearly justifiable, the prosecutor won't seek an indictment in the first place, but the fact that the case is before a grand jury at all is practically prima facie evidence in and of itself that something criminal could have transpired. And it's certainly not the case here that the shooting was so clearly justifiable that an indictment shouldn't have been sought in the first place -- even you can only muster "well, there's so much conflicting evidence, the poor jury might have gotten confused!" as your strongest argument against a trial.

And this is not just a matter of arbitrary procedure. Grand juries and petit juries were developed to serve different purposes. Grand juries are not selected the same way regular juries are and are not necessarily representative of the broader community like a petit jury is supposed to be. They therefore do not provide the same legal safeguards that a petit jury does. You say that Wilson would most likely have been acquitted at trial, but this is completely irrelevant. What matters is that this was a perversion of the system. Wilson actually probably would have been acquitted, but what about the next guy that a partial prosecutor helps get off the hook? An acquittal might not be "justice" in the eyes of those who believe Wilson committed murder, but at least that's the legal system we signed up for. I can't tell whether you can't see the difference or simply don't think it matters, but I find either proposition staggering. Whatever the result in Wilson's trial might have been, this is literally corruption.
This is insane. A law enforcement officer shoots somebody to death and your position is that the criminal justice system is not the appropriate place to determine whether or not this act constituted a crime. Why have a criminal code at all? Let's just settle everything in the civil system!
See above.

I can take it that within the criminal justice system no crime was committed.
See above.

You don't understand how the criminal justice system works.

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Re: Ferguson, Missouri

Post by aknowledgeableperson »

It's not the grand jury's place to determine whether a crime was committed
It has only two questions to answer: might a crime have been committed here, and might the accused have committed it.
Please clarify. "Might a crime have been committed here?" would imply yes or no. Yes a crime was committed here. Or no a crime was not committed here.
You don't understand how the criminal justice system works.
OK, in general practice the grand jury acts as an extension or the prosecutor, more or less. But the origins of the grand jury was to counter the power of a prosecutor. However, there is nothing that states, at least that I know of, that the grand jury must follow what the prosecutor wants, it can be independent body.

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Re: Ferguson, Missouri

Post by im2kull »

phuqueue wrote:
aknowledgeableperson wrote:
It has only two questions to answer: might a crime have been committed here, and might the accused have committed it.
And the answer might be the grand jury determined that no crime was committed, which is within its responsibility and powers. So if no crime was committed why have a jury trial?

We can go on and on, which we have, about this but just because there was a shooting it may not have been a crime. Maybe in situations like this a police officer does have an advantage if he/she testifies before a grand jury in that the law can be used to justify the shooting and therefore no crime was committed.
This is like talking to a brick wall, except it's worse because at least the brick wall can't speak and so never said anything stupid and can't keep repeating that same stupid thing. "We can go on and on" only because you refuse to understand what a grand jury's role is in our legal system.

It's not the grand jury's place to determine whether a crime was committed, only to determine whether there is probable cause. For the grand jury to say that there's not even probable cause would mean that in their eyes there is basically no way that the act could have been criminal. Yet it's plainly clear that killing somebody could be a criminal act. Self-defense, law enforcement use of force, etc are all defenses that are raised at trial and should not be presented to or considered by a grand jury. In front of a grand jury is not the place to "justify" a shooting -- even if it actually was legally justifiable. This is why it is so extraordinarily easy for a prosecutor to get an indictment (if he wants it). If the act was clearly justifiable, the prosecutor won't seek an indictment in the first place, but the fact that the case is before a grand jury at all is practically prima facie evidence in and of itself that something criminal could have transpired. And it's certainly not the case here that the shooting was so clearly justifiable that an indictment shouldn't have been sought in the first place -- even you can only muster "well, there's so much conflicting evidence, the poor jury might have gotten confused!" as your strongest argument against a trial.

And this is not just a matter of arbitrary procedure. Grand juries and petit juries were developed to serve different purposes. Grand juries are not selected the same way regular juries are and are not necessarily representative of the broader community like a petit jury is supposed to be. They therefore do not provide the same legal safeguards that a petit jury does. You say that Wilson would most likely have been acquitted at trial, but this is completely irrelevant. What matters is that this was a perversion of the system. Wilson actually probably would have been acquitted, but what about the next guy that a partial prosecutor helps get off the hook? An acquittal might not be "justice" in the eyes of those who believe Wilson committed murder, but at least that's the legal system we signed up for. I can't tell whether you can't see the difference or simply don't think it matters, but I find either proposition staggering. Whatever the result in Wilson's trial might have been, this is literally corruption.
This is insane. A law enforcement officer shoots somebody to death and your position is that the criminal justice system is not the appropriate place to determine whether or not this act constituted a crime. Why have a criminal code at all? Let's just settle everything in the civil system!
See above.

I can take it that within the criminal justice system no crime was committed.
See above.

You don't understand how the criminal justice system works.
Jeeze, you sure are mad. Obviously you were not a part of the grand jury, so you can quit making assumptions now. We (The general non-ignorant public) don't care. A grand jury made it's decision. The prosecutor has an obligation to turn a back to alleged crimes that they believe did not occur. Going rogue and pressing charges against someone with no legal or moral basis is exactly what gets a prosecutor in trouble, thanks to the Prosecutorial Misconduct laws. I suggest you read up on those before carrying on about Prosecutorial Discretion. You don't send innocent people to trial. Period.

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Re: Ferguson, Missouri

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im2kull wrote:We (The general non-ignorant public) don't care.
Bzzzt.

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Re: Ferguson, Missouri

Post by loftguy »

Thanks Chaglang and Phuque, for trying to reason this through.

Im2kull, I can only hope that you and AKP have visits from the Scrooge ghosts and that you get to spend some time in the perverse hell that you refuse to see.

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Re: Ferguson, Missouri

Post by mean »

Ah yes, the good old ghost of systemic racial prejudice.

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Re: Ferguson, Missouri

Post by aknowledgeableperson »

There are two different but related issues here, the legal and the moral.

Where the actions of the prosecutor and his staff legal? Did they go beyond the scope of their legal authority? Did the grand jury members do anything illegal? Was this a legal or illegal process? Yes or no? Could the Governor or the State Attorney have come in and stop the process and take over or reassign the case to another party? Yes, there was the issue of state law vs SCOTUS opinion on the use of police force but the prosecutor did follow state law and it is up to the state legislature to change the law or someone file legal action to force a change. In other words, legally was any conduct in the wrong with what has happened so far in the legal process? If something was done illegally why isn't some other legal action being taken to correct it?

Now, the moral side. To make this simple anyone or the grand jury as a whole could have said "Screw it, I'm gonna take a stand and take action to make this go to trial." But no one did. Is that a sign that this case is an example of systemic racial prejudice? On that I guess we can wait and see what the US Department of Justice has to say.

Are there troubles between the Blacks, and Browns, and the Blues? Hell yes. The problem(s) and solution(s) are complex and will not be completely addressed in the short term. Many cannot even agree on what the solution(s) would be.

One thing I think we can all agree on is there is no clear agreement on what did or did not happen in this shooting, or maybe I should limit that to me. While some would want a trial a trial would not solve or clarify what did or did not happen. For example, the OJ Simpson criminal trial. I for one do not believe this case would even progress to the jury selection process. But let's say the case did go to trial, evidence was presented and witnesses heard and lawyers voiced their summaries and the verdict was innocent of all charges. Would those who wanted Justice in this case be satisfied? Or would this case be just another example of systemic racial prejudice? And I do believe that if that if there was an innocent verdict those of you who believed we needed a jury trial would take the later stance.

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Re: Ferguson, Missouri

Post by phuqueue »

aknowledgeableperson wrote:
It's not the grand jury's place to determine whether a crime was committed
It has only two questions to answer: might a crime have been committed here, and might the accused have committed it.
Please clarify. "Might a crime have been committed here?" would imply yes or no. Yes a crime was committed here. Or no a crime was not committed here.
Do you know what "might" means? The grand jury doesn't determine whether a crime was committed, it determines whether it's possible that a crime could have been committed. "Might a crime have been committed here" is, indeed, a yes or no question. But answering "yes" doesn't mean that a crime was definitely committed because that's not what "might" means at all.
You don't understand how the criminal justice system works.
OK, in general practice the grand jury acts as an extension or the prosecutor, more or less. But the origins of the grand jury was to counter the power of a prosecutor. However, there is nothing that states, at least that I know of, that the grand jury must follow what the prosecutor wants, it can be independent body.
The grand jury most certainly doesn't have to do what the prosecutor wants, but the grand jury proceedings are led by the prosecutor and there is no defense present, so (surprisingly!) prosecutors get indictments almost all of the time.
Where the actions of the prosecutor and his staff legal? Did they go beyond the scope of their legal authority? Did the grand jury members do anything illegal? Was this a legal or illegal process? Yes or no? Could the Governor or the State Attorney have come in and stop the process and take over or reassign the case to another party? Yes, there was the issue of state law vs SCOTUS opinion on the use of police force but the prosecutor did follow state law and it is up to the state legislature to change the law or someone file legal action to force a change. In other words, legally was any conduct in the wrong with what has happened so far in the legal process? If something was done illegally why isn't some other legal action being taken to correct it?
I already addressed this like two posts ago.

Re: state law vs. "SCOTUS opinion," if you think it's okay for state law to control here, you should consider re-enrolling in a high school US government class to brush up on a couple things. And anyway, perhaps in recognition of the fact that the MO law is unconstitutional, the prosecution did, at the last minute, and in arguably the most confusing possible way, present the grand jury with the correct law. The purported reason for the eleventh hour switch was that, "What we have discovered, and we have been going along with this, doing our research, is that the statute in the State of Missouri does not comply with the case law." So the best possible reading here, if we believe they did not intentionally engineer this course of events to confuse the jury but avoid committing professional malpractice, is that the County prosecutor's office was so incompetent that they didn't realize, until November 21, that there was a significant and directly on point Supreme Court case that had superseded the state law nearly three decades ago.
Now, the moral side. To make this simple anyone or the grand jury as a whole could have said "Screw it, I'm gonna take a stand and take action to make this go to trial." But no one did. Is that a sign that this case is an example of systemic racial prejudice? On that I guess we can wait and see what the US Department of Justice has to say.
False: grand juries do not have to make unanimous decisions. The size and voting requirements of grand juries vary, but in Ferguson, a true bill requires the votes of nine (out of twelve) grand jurors. We don't know how the grand jurors voted, but what this means is that in an extreme case the grand jury could have voted 8-4 in favor of indictment and the decision would still have been no true bill.
Are there troubles between the Blacks, and Browns, and the Blues? Hell yes. The problem(s) and solution(s) are complex and will not be completely addressed in the short term. Many cannot even agree on what the solution(s) would be.

One thing I think we can all agree on is there is no clear agreement on what did or did not happen in this shooting, or maybe I should limit that to me. While some would want a trial a trial would not solve or clarify what did or did not happen. For example, the OJ Simpson criminal trial. I for one do not believe this case would even progress to the jury selection process. But let's say the case did go to trial, evidence was presented and witnesses heard and lawyers voiced their summaries and the verdict was innocent of all charges. Would those who wanted Justice in this case be satisfied? Or would this case be just another example of systemic racial prejudice? And I do believe that if that if there was an innocent verdict those of you who believed we needed a jury trial would take the later stance.
You're like a broken record. You're free to believe or disbelieve the factual findings of a jury, but in our legal system the jury is the finder of fact. Getting a verdict you don't like in a jury trial doesn't mean that a jury trial shouldn't have taken place. Our legal system is far from perfect, but it is at least more reliable than the haphazard quasi-trial that was thrown together behind closed doors in Clayton.
im2kull wrote:Jeeze, you sure are mad. Obviously you were not a part of the grand jury, so you can quit making assumptions now.
What "assumptions" am I making?
We (The general non-ignorant public) don't care.
Yes, this is clearly the case -- nobody cares except me! If anybody else cared they surely would have protested it or something, so I guess I'm all alone here.
A grand jury made it's decision.
And how they got there is sort of what this entire argument is about.
The prosecutor has an obligation to turn a back to alleged crimes that they believe did not occur. Going rogue and pressing charges against someone with no legal or moral basis is exactly what gets a prosecutor in trouble, thanks to the Prosecutorial Misconduct laws. I suggest you read up on those before carrying on about Prosecutorial Discretion. You don't send innocent people to trial. Period.
As an actual lawyer, I can assure you that there is a legal basis for charges against Wilson. He most likely would not have been found guilty at trial, but that's not because his case is just soooooo airtight that it would have been "prosecutorial misconduct" to indict him in the first place, it's because the bar to convict is very high.
loftguy wrote:Thanks Chaglang and Phuque, for trying to reason this through.

Im2kull, I can only hope that you and AKP have visits from the Scrooge ghosts and that you get to spend some time in the perverse hell that you refuse to see.
Talking to akp is frustrating because he keeps repeating the same wrongful things, but in his defense I believe he's at least arguing in good faith. I would not put him on anything close to the same level as im2kull, who is either a troll or a fascist. I know it's pointless to engage with him, although obviously I am still doing it anyway.

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Re: Ferguson, Missouri

Post by AllThingsKC »

phuqueue wrote: Do you know what "might" means? The grand jury doesn't determine whether a crime was committed, it determines whether it's possible that a crime could have been committed. "Might a crime have been committed here" is, indeed, a yes or no question. But answering "yes" doesn't mean that a crime was definitely committed because that's not what "might" means at all.
Forgive me if you have already mentioned this as I haven't read every single word in this thread. But how much evidence is needed for a grand jury to decide if a crime could have been committed? I ask because on the surface, I look at how much attention was put on this investigation from the president down to the police chief. It seems like that kind of attention would provide the grand jury with significant evidence either way. If that is true, then either 1) they didn't have enough evidence or 2) they DID had enough evidence not to indict. Or 3) maybe the grand jury was just corrupt and didn't care about the evidence at all.

In short, I guess what I am asking is how much evidence is needed for a grand jury to determine if it was possible that a crime was committed.

I'm not challenging your opinion. I have no counter-argument to make. I really am just asking the question.

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Re: Ferguson, Missouri

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False: grand juries do not have to make unanimous decisions. The size and voting requirements of grand juries vary, but in Ferguson, a true bill requires the votes of nine (out of twelve) grand jurors. We don't know how the grand jurors voted, but what this means is that in an extreme case the grand jury could have voted 8-4 in favor of indictment and the decision would still have been no true bill.
Sorry about the wording. I know a grand jury doesn't have to be unanimous. My point was basically that if the prosecutor was leading the jury not to indict (as some as said) then one or more of them could have said "No, we will indict." A criminal jury trial does have to be unanimous so let's say 4 voted not to indict then that means to me that there would have been an even harder time to get a conviction.
Getting a verdict you don't like in a jury trial doesn't mean that a jury trial shouldn't have taken place. Our legal system is far from perfect, but it is at least more reliable than the haphazard quasi-trial that was thrown together behind closed doors in Clayton.
True, but for those demanding "Justice for Michael Brown" anything short of a conviction would have been no different than what the grand jury did. True, for you (and others) a jury trial was needed. I on the other hand feel that a jury trial would have accomplished nothing, and maybe even make the situation worse.
The grand jury doesn't determine whether a crime was committed, it determines whether it's possible that a crime could have been committed. "Might a crime have been committed here" is, indeed, a yes or no question. But answering "yes" doesn't mean that a crime was definitely committed because that's not what "might" means at all.
You used the word might so I just followed your usage. Ok, so is it "probable" that a crime was committed? Now, the choice the grand jury made was not to indict. Correct me if I am wrong but that could be for one of two reasons. First, Wilson did not shoot Brown. Or two, Wilson do shoot Brown but it was not a crime. We already know Wilson did shoot Brown, he admits it so that leads to reason two, a crime was not committed by Wilson shooting Brown. Maybe there is a third or fourth reason for the grand jury not to indict but these two are the most obvious.
True, it seems you feel that maybe the grand jury shouldn't be determining whether or not Wilson committed a crime but if the grand jury doesn't have that power then why have a grand jury in the first place? If the bar is set so low that all a grand jury does is say "yes, the act was remotely a possible crime" and "this person may remotely be possibly the one who committed the crime" then why have grand jury proceedings in the first place?

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Re: Ferguson, Missouri

Post by aknowledgeableperson »

You're free to believe or disbelieve the factual findings of a jury, but in our legal system the jury is the finder of fact.
How would you stand with regards to jury nullification? And if a trial jury can exercise that option then why not a grand jury?

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Re: Ferguson, Missouri

Post by grovester »

aknowledgeableperson wrote:
False: grand juries do not have to make unanimous decisions. The size and voting requirements of grand juries vary, but in Ferguson, a true bill requires the votes of nine (out of twelve) grand jurors. We don't know how the grand jurors voted, but what this means is that in an extreme case the grand jury could have voted 8-4 in favor of indictment and the decision would still have been no true bill.
Sorry about the wording. I know a grand jury doesn't have to be unanimous. My point was basically that if the prosecutor was leading the jury not to indict (as some as said) then one or more of them could have said "No, we will indict." A criminal jury trial does have to be unanimous so let's say 4 voted not to indict then that means to me that there would have been an even harder time to get a conviction.
Getting a verdict you don't like in a jury trial doesn't mean that a jury trial shouldn't have taken place. Our legal system is far from perfect, but it is at least more reliable than the haphazard quasi-trial that was thrown together behind closed doors in Clayton.
True, but for those demanding "Justice for Michael Brown" anything short of a conviction would have been no different than what the grand jury did. True, for you (and others) a jury trial was needed. I on the other hand feel that a jury trial would have accomplished nothing, and maybe even make the situation worse.
The grand jury doesn't determine whether a crime was committed, it determines whether it's possible that a crime could have been committed. "Might a crime have been committed here" is, indeed, a yes or no question. But answering "yes" doesn't mean that a crime was definitely committed because that's not what "might" means at all.
You used the word might so I just followed your usage. Ok, so is it "probable" that a crime was committed? Now, the choice the grand jury made was not to indict. Correct me if I am wrong but that could be for one of two reasons. First, Wilson did not shoot Brown. Or two, Wilson do shoot Brown but it was not a crime. We already know Wilson did shoot Brown, he admits it so that leads to reason two, a crime was not committed by Wilson shooting Brown. Maybe there is a third or fourth reason for the grand jury not to indict but these two are the most obvious.
True, it seems you feel that maybe the grand jury shouldn't be determining whether or not Wilson committed a crime but if the grand jury doesn't have that power then why have a grand jury in the first place? If the bar is set so low that all a grand jury does is say "yes, the act was remotely a possible crime" and "this person may remotely be possibly the one who committed the crime" then why have grand jury proceedings in the first place?
Your last paragraph is exactly how grand juries behave 99% of the time.

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Re: Ferguson, Missouri

Post by mean »

aknowledgeableperson wrote:You used the word might so I just followed your usage. Ok, so is it "probable" that a crime was committed?
My understanding of the grand jury process is that they are not there to judge probability, but possibility. The correct question, then, would be, "is it possible that a crime was committed," and the answer to that question is yes, as objectively as anything can be imo, given the conflicting witness testimonies and what we have in the way of physical evidence. In other words, their sole job (lawyer types correct me if I'm wrong) is to either conclusively rule out that a crime was committed, or send it to trial.
Now, the choice the grand jury made was not to indict. Correct me if I am wrong but that could be for one of two reasons. First, Wilson did not shoot Brown. Or two, Wilson do shoot Brown but it was not a crime. We already know Wilson did shoot Brown, he admits it so that leads to reason two, a crime was not committed by Wilson shooting Brown. Maybe there is a third or fourth reason for the grand jury not to indict but these two are the most obvious.
True, it seems you feel that maybe the grand jury shouldn't be determining whether or not Wilson committed a crime but if the grand jury doesn't have that power then why have a grand jury in the first place? If the bar is set so low that all a grand jury does is say "yes, the act was remotely a possible crime" and "this person may remotely be possibly the one who committed the crime" then why have grand jury proceedings in the first place?
The reason they didn't indict was that the prosecutor wasn't prosecuting. The purpose of the grand jury does, in fact, appear as far as I can tell to be to determine whether it was "remotely" possible that the person under consideration committed a crime, and if there was such a possibility, to send it to trial. And it isn't even "remote" considering that Wilson admits everything. Virtually ANYTIME a cop (or anyone else for that matter) shoots ANYONE it is, as far as I'm concerned, prima facie evidence that a crime MAY have been committed, and a grand jury at that point is nothing but a roadblock where they can get away with it without having to go to trial if they're lucky or a cop. Sure, there are situations I can imagine where someone gets shot and it is so abundantly obvious that the shooter had no choice that an indictment / trial isn't really necessary, but this isn't that case, regardless of the fact that Wilson probably wouldn't have been convicted. It is abundantly clear that dependent upon which witnesses you believe and how much credence you put into Wilson's own testimony, a crime very easily MAY HAVE been committed. That is plenty enough by the legal standards we've established to indict.

And I agree with phuqueue, it is highly likely Wilson would have been acquitted. And for a while I felt like that was adequate justification for not bothering to try him, because why waste the resources on a predetermined outcome? But I've changed my mind. The right thing to do was indict, regardless.

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Re: Ferguson, Missouri

Post by aknowledgeableperson »

A prosecutor has much leeway with regards to whether to press charges or not, and if to press charges then the level of charges to bring. But to bring those charges there has to be the evidence and the belief there is enough evidence to not only press the charges but also to secure a conviction. Which is a higher standard than to say let the jury sort it out.

Have reviewed County Attorney responsibilities for a few jurisdictions. A few things that seems to be consistent among them. This was taken from Iowa's:
Standard 2.2

The prosecutor should utilize his or her discretion in screening to eliminate those cases from the criminal justice system in which prosecution is not justified. Among the factors to be considered in this decision are:

1. Doubt as to the accused's guilt;
...
8. Insufficiency of admissible evidence to support a case;
...


Here are a few items from:
National District Attorneys Association
National Prosecution Standards
Third Edition

1. The Prosecutor’s Responsibilities
1-1.1 Primary Responsibility
The prosecutor is an independent administrator of justice. The primary responsibility of a
prosecutor is to seek justice, which can only be achieved by the representation and
presentation of the truth. This responsibility includes, but is not limited to, ensuring that
the guilty are held accountable, that the innocent are protected from unwarranted harm,
and that the rights of all participants, particularly victims of crime, are respected.
...
Commentary
A prosecutor is the only one in a criminal action who is responsible for the presentation
of the truth. Justice is not complete without the truth always being the primary goal in all
criminal proceedings. A prosecutor is not a mere advocate and unlike other lawyers, a
prosecutor does not represent individuals or entities, but society as a whole. In that
capacity, a prosecutor must exercise independent judgment in reaching decisions while
taking into account the interest of victims, witnesses, law enforcement officers, suspects,
defendants and those members of society who have no direct interest in a particular case,
but who are nonetheless affected by its outcome.
...
3-3.5 Evidence Before the Grand Jury
Unless otherwise required by the law or applicable rules of ethical conduct of the
jurisdiction, the following should apply to evidence presented to the grand jury:
a. A prosecutor should disclose any credible evidence of actual innocence known
to the prosecutor or other credible evidence that tends to negate guilt, as required
by law or applicable rules of ethical conduct;
...
3-3.6 Request by a Target to Testify
Except as otherwise governed by the law of the jurisdiction, the prosecutor should grant
requests by the target of an investigation to testify before the grand jury
...
Commentary
In those jurisdictions that may use grand juries to investigate criminal activity and initiate
charges, the procedures for the activities of the jurors, prosecutors, law enforcement
officers, and witnesses are generally set forth in considerable detail in the statutes and
case law of the jurisdiction.
As a result, the standards addressing the grand jury investigation are intended to
encourage prosecutors to conduct the grand jury investigations with a sense of fairness. In
order for the criminal justice system to remain viable, a large majority of the people must
believe in its fairness and effectiveness. Provisions such as allowing a witness to consult
with counsel, notification of target status, warning regarding the use of testimony, and
allowing a target to testify allow the prosecutor to describe and defend the system by
arguing that those provisions show it to be an effective tool in the pursuit of justice.
...
Commentary
Following an initial screening decision that prosecution should be initiated, the charging
decision is the prerogative and responsibility of the prosecutor. The charging decision
entails determination of the following issues:
• What possible charges are appropriate to the offense or offenses; and
• What charge or charges would best serve the interests of justice?
In making a charging decision, the prosecutor should keep in mind the power he or she is
exercising at that point in time. The prosecutor is making a decision that will have a
profound effect on the lives of the person being charged, the person’s family, the victim,
the victim’s family, and the community as a whole. The magnitude of the charging
decision does not dictate that it be made timidly, but it does dictate that it should be made
wisely with the exercise of sound professional judgment.
There will be times when information not known at the time of charging will influence
future actions in a case. While it is advisable to gather all information possible prior to
charging, that is simply an unrealistic expectation. The prosecutor must balance the
importance of gathering information and the importance of public safety interests when
determining when he or she has sufficient information to make a charging decision.
While commencing a prosecution is permitted by most ethical standards upon a
determination that probable cause exists to believe that a crime has been committed and
that the defendant has committed it, the standard prescribes a higher standard for filing a
criminal charge. To suggest that the charging standard should be the prosecutor’s
reasonable belief that the charges can be substantiated by admissible evidence at trial is
recognition of the powerful effects of the initiation of criminal charges. Pursuant to the
prosecution’s duty to seek justice, the protection of the rights of all (even the prospective
defendant) is required.
...
8. The Grand Jury Charging Function
4-8.1 Prosecutorial Responsibility
To the extent permitted by the jurisdiction’s law or rules, a prosecutor appearing before a
grand jury:

d. Should recommend that a grand jury not indict if the prosecutor believes that
the evidence presented does not warrant an indictment under governing law, and
he or she should encourage members of the grand jury to consider the fact that
sufficient evidence must exist to enable the prosecutor to meet the state’s burden
of proof at trial;
...

phxcat
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Re: Ferguson, Missouri

Post by phxcat »

aknowledgeableperson wrote:There are two different but related issues here, the legal and the moral.

Where the actions of the prosecutor and his staff legal? Did they go beyond the scope of their legal authority? Did the grand jury members do anything illegal? Was this a legal or illegal process? Yes or no? Could the Governor or the State Attorney have come in and stop the process and take over or reassign the case to another party? Yes, there was the issue of state law vs SCOTUS opinion on the use of police force but the prosecutor did follow state law and it is up to the state legislature to change the law or someone file legal action to force a change. In other words, legally was any conduct in the wrong with what has happened so far in the legal process? If something was done illegally why isn't some other legal action being taken to correct it?

Now, the moral side. To make this simple anyone or the grand jury as a whole could have said "Screw it, I'm gonna take a stand and take action to make this go to trial." But no one did. Is that a sign that this case is an example of systemic racial prejudice? On that I guess we can wait and see what the US Department of Justice has to say.

Are there troubles between the Blacks, and Browns, and the Blues? Hell yes. The problem(s) and solution(s) are complex and will not be completely addressed in the short term. Many cannot even agree on what the solution(s) would be.

One thing I think we can all agree on is there is no clear agreement on what did or did not happen in this shooting, or maybe I should limit that to me. While some would want a trial a trial would not solve or clarify what did or did not happen. For example, the OJ Simpson criminal trial. I for one do not believe this case would even progress to the jury selection process. But let's say the case did go to trial, evidence was presented and witnesses heard and lawyers voiced their summaries and the verdict was innocent of all charges. Would those who wanted Justice in this case be satisfied? Or would this case be just another example of systemic racial prejudice? And I do believe that if that if there was an innocent verdict those of you who believed we needed a jury trial would take the later stance.
I am not a lawyer, I will leave the legal aspects to those who are, but my understanding is that it would take not one but nine people to stand up and say "Screw it, I'm gonna take a stand and take action to make this go to trial". Considering that the prosecutors framed Wilson's testimony with the outdated law that basically absolved him of having committed a crime (before later kind of meekly taking it back), that they gave witness 40 (who now appears to have been known to be a perjurer) significant credence, that they seemed to have cross examined the witnesses against Wilson and didn't really cross examine Wilson himself, and that the jurors had already been exposed to the politicization of the case to the extent that several probably already had their minds made up, I am not surprised that it would be difficult to find nine jurors out of twelve to recognize the right thing to do. And what is important to note is that in a public jury trial, there would be no witness 40. If Wilson were to take the stand, he would be cross examined by someone who meant it, as would the other witnesses in favor or Wilson. The medical examiner who seemed to be incompetent would have been cross examined, and I am sure that a competent prosecutor would have used the video of the construction workers (was that even used in the GJ trial? I don't know).

As for whether the prosecutor acted legally or ethically, I would say ethically, absolutely not. It has become quite evident that his intention was to use the grand jury as a way to avoid indicting. Legally, again, I am not a layer, but his use of Witness 40m who it appears he knew was a fraud, I would think should put him in some legal hot water.

Again, would he have been convicted, I would be surprised if he was. But that is for a jury to decide, not a GJ or a prosecutor.

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beautyfromashes
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Re: Ferguson, Missouri

Post by beautyfromashes »

phuqueue wrote:To be 100% clear, I don't want anybody to be killed, ever, under any circumstances, but if a few more police officers are killed in the line of duty because they exercised a higher level of caution before employing deadly force, and this higher level of caution saves the lives of people like Tamir Rice, that seems like a worthwhile trade off to me. Police officers willingly go into what they know is a dangerous line of work.
Two NYPD officers killed by a protester over the weekend. I wonder if the police were exercising a 'higher level of caution'. And why are we not requesting the same level of caution from our civic leaders and elected officials.

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