https://facebook/samtrapp1/posts/817676528297063 Trappers Too endorses fair prosecution of crimes! Before I get to my commentary, I want to say that I do not condone violence and /or looting by crowds any more than I endorse the rampant and extreme violence constantly perpetrated (and rarely remedied) by far too many police officers in Missouri and elsewhere in the United States. But EVERYONE seems to be ignoring the big problem with all of this - the lack of necessity of the grand jury process itself. I will explain that comment in a minute. Apparently, no others are willing to discuss it and it is obvious that the news commentators refuse to outline how the system really works, or just dont understand it themselves. So I thought it would be nice to outline the system and let you decide for yourselves whether it was properly used to not charge Officer Wilson with killing Mr. Brown, or whether Wilson should be charged in spite of the grand jury decision. So here goes. By the way, my commentary has to do ONLY with grand juries in Missouri state court, although the same arguments would probably apply to other states or to the federal system as well. In Missouris legal system, there are TWO potential ways that a prosecutor can bring felony criminal charges against a defendant: (1) He may file an information against the defendant, or (2) he may convene a grand jury. (1) Information and Preliminary Hearing. Under the first option the prosecutor, in his SOLE discretion, files the charging document (the Information) in Associate Circuit Court in the county where the alleged crime occurred. There are minimal procedural rule differences county by county in Missouri, but this process is available in all counties. Under this process, there is an arraignment (where the charges are read to the defendant and he pleads not guilty) and a PRELIMINARY HEARING date is set. The ONLY purpose of this hearing is to determine whether there is enough information available for the Defendant to be charged with a felony. During the hearing, the Associate Circuit Judge gets to hear the evidence the prosecutor possesses and is also tasked to decide whether the evidence presented by the prosecutor, if true, would constitute a Felony. During the Preliminary Hearing, the defendant has the right to be present, to right to be represented by counsel, and the right to cross-examine witnesses and to present witnesses of his own choosing. The defendant even has the right to waive the hearing altogether by admitting that the Information presented, if true, is enough to charge him with a felony (this is actually what happens in the vast majority of cases, because the only issue is whether there is enough to CHARGE the felony, not whether there is enough evidence to convict the defendant). In a Preliminary Hearing, the rules of evidence apply, so hearsay evidence, evidence that lacks foundation and evidence that is improperly obtained may be objected to and not allowed by the judge. The proceeding is open to the public (usually) and may be recorded and/or transcribed. At the conclusion of the hearing, if the Associate Judge determines that enough evidence has been presented to constitute a felony charge, the Defendant is bound over to the countys Circuit Court for criminal proceedings. (2) Grand Jury. Under the second option, the prosecutor, in his SOLE discretion, can convene a Grand Jury. Just as in the Preliminary Hearing, the ONLY purpose of grand jury is to determine whether there is enough information available for the Defendant to be charged with a felony. In the grand jury process, there is no arraignment. In fact, the defendant doesnt even have to be told that charges against him are being presented to the grand jury for disposition. It is a secret process, without access by the public. The defendant has no rights of any kind in the grand jury process. He may not be present, he has no right to counsel, he has no right to cross-examine witnesses and no right to present witnesses on his own behalf. No judge is present, so evidence that is inadmissible (hearsay evidence, evidence that lacks foundation, improperly obtained evidence, etc.) is not objected to and is therefore allowed to be presented to the grand jury without objection. The proceeding may be recorded and or transcribed, but is not public record. At the end of the process, the grand jury may either sign an Indictment or may sign a document of No True Bill, stating that there was not sufficient evidence to charge the crime. If the Indictment is signed, it is filed in Circuit Court, the Defendant is arrested and felony proceedings begin. The above has all been fact, with me trying not to be to slanted one way or the other. Now comes my slanted opinions on the process and its use in the Ferguson matter. It bears repeating here that most people do not understand the process to charge someone with a felony and do not focus on what is most likely the main reason prosecutors prefer grand jury proceedings over preliminary hearings. In my opinion, the reason is obvious. But of course, I have an absolute mistrust of government, because we all presume (incorrectly) that motive is not present in the decisions of government actors. I prefer the Preliminary Hearing over the grand jury for the same reason, as I know motive usually does exist. Please allow me to explain. In the vast majority of Missouri counties, the Preliminary Hearing process is the ONLY process available to the Prosecutor, as most Missouri counties have no grand jury to convene. Arguably, a grand jury may be convened in all counties, but most counties havent allowed or planned for it in their budgets or otherwise, so the option is unavailable. In larger counties, a grand jury usually can be called, but is not often used due to the expense involved. In my opinion, the prosecutors only motivation to employ the grand jury instead of the preliminary hearing is a preference for charging or not charging the defendant. When a prosecutor does not have a personal or political preference whether the defendant is charged or is not charged, the Preliminary Hearing process is used virtually 100% of the time. However, when a political or personal preference does exist toward charging or not charging a defendant, the prosecution prefers the grand jury. If the prosecutor has a preference that someone be charged with a felony, but doesnt want to present evidence at a preliminary hearing or if the evidence isnt really good enough to even get past preliminary hearing, or for any other of a host of reasons that a prosecutor wants to charge someone, the grand jury is preferable. This happens where, for example, the prosecutor knows that a defense attorney will likely win a Motion to Supress certain evidence, the defendant has a really bad criminal history, a witness is going to be questionable or for any other of a multitude of reasons that cases do or do not survive Preliminary Hearing. So the cynical view of the process is that when the prosecutor knows the associate judge will not bind the case over to Circuit Court, he takes the case to the grand jury so the case proceeds to felony court. We have all heard that a grand jury can indict a ham sandwich. That is because of the lack of evidentiary rules that need to be followed at that stage. On the other hand, if the prosecution prefers (either personally or politically) that a defendant not be charged with a felony; the closed, non-public nature of the grand jury process allows that result as well, and allows the prosecutor to transfer blame to the grand jury. For example, If the prosecutors close friend has been arrested for DWI and the prosecutor doesnt wish for his discretion to not charge someone to be questioned, he can present a weak case to the grand jury and an indictment will not issue. He can then wring has hands publicly and claim that he presented the case to the grand jury and indictment was refused. After all, what can he do if the grand jury refuses indictment? If there wasnt enough evidence for the grand jury to indict, how can there possibly be enough for the prosecutor to win a felony jury trial? I believe this to be the case in Ferguson. If anyone can be indicted, why wasnt Wilson? Was there a prosecutorial preference one way or the other? We really cannot know the answer to that question until we see what was presented to the grand jury by the prosecutor. It may be obtainable under Missouri Sunshine Law, but the disclosure of that information will be fought every step of the way. If the family files suit civilly, they MAY be able to get the transcript of the grand jury proceedings. Otherwise, not likely. But there is a much larger question: Why doesnt the prosecutor file criminal charges against Wilson anyway? He certainly has the ability. No United States or Missouri law prevents him from filing charges against Wilson even in spite of the grand jury decision. After all, Double Jeopardy does not attach to the failure of a grand jury to issue an indictment and far weaker cases have been filed against many individuals currently residing in prison. I say that we should let a real jury make the decision, publicly. Not behind closed doors and without scrutiny. Charge the man already! Trust this government? Not at all, thank you very much!
Posted on: Mon, 15 Dec 2014 07:37:37 +0000
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