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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsJustice Scalia Explains What Was Wrong With The Ferguson Grand Jury
Maybe the protests should adopt the specific goal of calling for a second grand jury with a special prosecutor (or whatever the Missouri equivalent would be).
http://thinkprogress.org/justice/2014/11/26/3597322/justice-scalia-explains-what-was-wrong-with-the-ferguson-grand-jury/
Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury
BY JUDD LEGUM POSTED ON NOVEMBER 26, 2014
On 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 jurys function not to enquire
upon what foundation [the charge may be] denied, or otherwise to try the suspects 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 didnt 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 Scalias 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.
more...
Karmadillo
(9,253 posts)the prosecutor try again to get the person indicted? This is from 2002 and appears to be addressing federal grand juries, but I would imagine the same would apply at the state level. There's no double jeopardy, so I can't think of anything that would argue against a second grand jury, especially when it's pretty clear McCulloch acted in a way to discourage an indictment.
http://campus.udayton.edu/~grandjur/feedback/feedba68.htm
<edit>
Question 1: When a State Grand Jury fails to indict can they be re-indicted on the same charges at a later date?
Question 2: Is the Grand Jury a trial, or a filtering function of the courts?
Response: Thank you.
Question 1: If a grand jury fails to indict, another grand jury can be asked to decide whether it will indict. Since an indictment is not a charge, there is no double jeopardy issue barring reconsideration by a second grand jury . . . the only thing that would effectively prevent that would be if the statute of limitations on the offenses at issue had run in the interim.
Question 2: Not a trial, not at all. More like a filtering function . . . actually, more like a prosecutor deciding whether someone should be charged with a crime, at least in terms of deciding whether to indict. With regard to a grand jury's investigating matters, that is more like what the police do.
SWB
2002
BrotherIvan
(9,126 posts)Why couldn't they try again? He was not tried, so there is no double jeopardy. He could be indicted for the same charge couldn't he?
Our legal minds here can perhaps answer the question.
PoliticAverse
(26,366 posts)BrotherIvan
(9,126 posts)Too bad no one in the state will do it. They'll just wait till it calms down and then walk away. I wish there was a way to make it happen.
justiceischeap
(14,040 posts)only because, IMO, McCulloch did a pretty damn good job of saying how unreliable many of the witnesses were. He pissed off the Brown family attorney's because of that since the Federal investigation is still on-going.
jwirr
(39,215 posts)McCullah will not. Even Nixon probably will not. How do the people get a fair hearing?
Glassunion
(10,201 posts)How can a system fail those it was never meant to protect in the first place?