The Mistake of Second-Guessing the Fergusson Grand Jury

A lot of smart and not-so-smart people have been second-guessing the decision of the Fergusson grand jury to not indict Officer Darren Wilson in the shooting death of Michael Brown.

One narrative goes that it was murder, a white cop executing a black man, case closed, let’s protest and/or riot. There’s no reasoning with these people.

Another group more reasonably argues, “The burden of proof for a grand jury is probable cause, a reasonable suspicion that Officer Wilson was guilty of some form of criminal homicide as the charges were laid out for the jury. As we have seen the evidence and the testimony in transcripts, surely there was enough conflicting testimony to meet this low burden.”

Probable cause is a very low burden of proof. We see it most often when police need justification to obtain a warrant for a search or immediate grounds to stop a vehicle. Probable cause can be a driver swerving while driving, a broken tail light, or a scream coming from a house. It can be a lump in someone’s pants in the shape of a gun. It can be the smell of alcohol on a driver’s breath.

Surely the testimony of claimed eye witnesses that Michael Brown had his hands up when he was executed gives probable cause to indict him?

I have to approach this as an attorney, and I want to assume as few facts as possible, whipping out Occam’s Razor.

I start with the fact that this grand jury was not specially empaneled for this case – they had been sitting for months, and were nearing the end of their term. They were specially held over for this case. Nine whites and three blacks. The shooting occurred after they were empaneled. Thus their selection was in no way prejudiced by their knowledge of the case. They were also experienced jurors, having handled numerous cases prior to this one. They knew what they were doing.

The next concept is an important one, that most non-lawyers (or people who have not been involved in court cases that have gone through the appeal process) are unaware of.

When a case has been through a lower court and one side decides to appeal it, most of the time the court of appeal makes its determination on the basis of the record of the case – the transcripts, the pictures of evidence (and sometimes actual evidence), written and sometimes oral arguments by lawyers. Only in narrow circumstances is the case reviewed “de novo” where the trial is actually redone, with witnesses, etc.

When the court of appeal does their review on the basis of transcripts, they accord great deference to the original judge and/or jury, and only overrule the original judgment (for the most part) if they find a major abuse of discretion or mistake.

Why? The appellate judges were not there. They did not watch the witnesses, they did not see their eyes as they spoke, could not see their facial expressions or how they sat or what they did with their hands. Were they nervous? Did they fail to meet the prosecutor’s or the jury’s eyes? Were they confident? Were they sweating? Did they shift in their chair? Did they stammer, or swallow hard repeatedly? Did they look confused when asked follow-up questions? Did they take a long time answering?

These things don’t show up in the reporter’s transcripts. Yet we all know how important such information is to whether we believe someone or not. The appellate judges, looking over witness transcripts months (or years) later cannot see those things, so they give deference to the judge or jury who were there and saw things they did not.  Appellate judges understand that the original judge or jury usually factor the believability of witnesses into their decisions, how they weigh testimony, and that affects the decisions they make.

When we try to second-guess or comment on the grand jury in Fergusson, we are acting like a court of appeal. The more informed of us are looking at the available evidence online, reading the testimony of witnesses, looking at the forensic evidence.

Some are saying that there was enough to raise probable cause for one of the counts they were given, and that Officer Wilson should have been indicted. Others are saying that the evidence was clear that there was not enough to indict him.

But none of us were there in the room when the witnesses testified. We did not watch their faces; we can only read transcripts (those of us who bother to do so). We do not know how credible those who provided the testimony that indicates Officer Wilson committed a crime appeared to the jurors.  Most of us are only reading summaries by others who bothered to read the testimony, so are dealing even one more step removed from the actual ability to judge credibility.

Perhaps more importantly, we were not in the jury room for the discussions after the testimony. We do not know what was said. “Did anyone believe a word that Dorian Johnson said?” “Not me.” “Me neither.” “And Witness 12 was lying about the whole thing – his testimony didn’t fit the forensic evidence and blood spatters at all – I don’t think he was even there.”

Without knowing what the lengthy discussions in the jury room involved, we cannot know whether the testimony that people rely on to say there was enough evidence to satisfy the probable cause standard was even considered as credible by the jury.

The jury can weigh testimony as to its believability or discard it completely. If they discard a piece of evidence or all or part of a witness’ testimony, then armchair quarterbacks looking at a transcript or summary have no way of saying that they should have returned an indictment.

They simply cannot know what went into the jury’s decision.

The fact is that no one outside those involved in the grand jury process knows why they failed to return an indictment.

I believe that we should accept that this grand jury a) knew its job, b) took its job seriously, knowing the stakes, and c) performed its job to the best of its ability – unless and until we have concrete evidence otherwise. To date I have seen none, other than opinion based upon disagreement with the outcome or ignorance of the process.

I honestly don’t know if Officer Wilson should have been charged with a crime, because I wasn’t there with the grand jury. There is a part of me that believes that something short of killing Michael Brown should have been sufficient, but I also wasn’t there that day either, and I wasn’t in Officer Wilson’s mind knowing his thoughts or apprehensions (or Michael Brown’s mind, for that matter). It may well have been Officer Wilson’s only option (or perceived option) for self-protection, or at least a justifiable defense under the law.  The grand jury evidently thought so, or at least believed there was not enough credible evidence to indict Officer Wilson under the very low probable cause standard.

And bottom line – there are consequences, sometimes fatal, for attacking an armed police officer.

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