Sunday, November 9, 2014

Michael Brown homicide: Ferguson Prosecutor Prepares to Cut Wilson Loose

Grand Jury testimony is supposed to be secret, but the Ferguson DA's Grand Jury has so many leaks it might set some kind of record. Grand Juries are supposed to be secret because they are completely opposed to the adversarial system that is supposed to make our justice system fair. 

In a normal court, a prosecutor for the state is allowed to attack a defendant, but the defendant is supposed to be represented by an equally able attorney. The defendant cannot be compelled to testify against himself. There is a judge whose duty is to see that the lawyers for each side argue fairly. It's called the adversarial trial system and it has its roots in English law back before the Magna Carta. 

But the Grand Jury has none of those protections for the defendant. In fact, Grand Juries are considered so unfair to the defendant that the US is the only country in the world that still uses them. Grand Juries are not run by the courts, but by the prosecutor, so there is not even a judge to help the jury persons understand the law.

The defendant does not need to be present and may not have defense council in any event. The prosecutor holds all the cards. The grand jury itself is composed of ordinary citizens, so the prosecutor acts in place of the judge, as well as the prosecuting attorney, by informing jurors about points of law.

Out of a recognition that Grand Juries are inherently unjust and prejudicial to the prosecutor's opponents, precautions have been taken with regard to their use. In the first place, they are supposed to be absolutely secret.

Precautions are taken to prevent leaks. Releasing testimony from a grand jury constitutes contempt of court. Violators are liable to fines and imprisonment, as well as the charge of obstruction of justice. Nevertheless, and despite the seriousness of leaking information, leaks have been coming from the Ferguson grand jury steadily. Protesters and county officials both see a pattern in these leaks.

Protesters believe the prosecution is leaking information to affect public opinion in favor of Officer Wilson. Someone tweeted early in October announcing that the case against Wilson was weak  It said:

"I know someone sitting on the grand jury. There isn't enough at this point to warrant an arrest. #Ferguson."

Prosecutors claimed that the owner of the twitter account had no connection with the prosecutor's office. Protesters pointed out that the same twitter account had been used to spread rumors about the Trayvon Martin trial a year earlier, tweets that were critical of the African-American community and supportive of Zimmerman. Regardless of the source of the tweet, its effect was to prejudice the public in favor of Wilson.

Instead of investigating whether the leak was real or not, the Ferguson prosecutor's office ignored it. They found the person who owned the twitter account and examined his computer. They concluded that the tweet was not sent from that computer. And that was the end of it.

Another intentional leak which may have come from the prosecutor's office was the autopsy report, also supposed to be confidential. None of the grand jurors had access to that document. The St. Louis Dispatch report quoted a forensic pathologist, Judith Melinek, as saying that the report supported officer Wilson's version of the incident. But Melinek says she was quoted out of context, and in fact she had told the reporter for the St. Louis Dispatch that the autopsy could support several interpretations, not just Wilson's version.

The official autopsy revealed that the victim had been taking marijuana. The reports of the autopsy said there was enough marijuana in Brown's system to cause hallucinations. This statement is extremely prejudicial, since it presents as factual something that can't be known. Additionally, even the idea that marijuana causes hallucinations is disputed, so stating it in a newspaper article misinforms the public about the truth.

All of the leaks favored the officer, Wilson, who was investigated in the first place only because demonstrators from the community demanded it. But we're looking at what was released. The leak said that 6 witnesses backed up Wilson's story. This only helps the prosecutor. If it were leaked by a jury member, it would be diffuse, not concentrated on one point. As it is, it releases information helpful to Wilson's defense in the way a lawyer would make an argument.

I found it incredible that African-American witnesses would be so well-organized that they would all have the same version of an incident. If they were that well-organized, all the accounts would be identical, the way all Fox News accounts are identical, no matter which of the talking heads is speaking. But that is not the case.

A St. Louis Dispatch article published soon after the shooting took place reported several witnesses telling their account of the events. There was no agreement among the witnesses on exactly what had happened. There was also no single version of events that every witness agreed on. This contradicts the information in the leak that stated that six or seven of the witnesses supported Wilson's version of the incident, but were afraid of reprisals if they spoke out publicly. 

In addition, the reporter interviewed two workers who did not know Michael Brown. One of the workers said that Brown had his hands up and was trying to surrender when Wilson shot him several times, killing him. This account, given by an eye-witness with no reason to fear reprisals shortly after the event, does not support Wilson's version of the incident.

All of the leaks have favored Wilson, but in such a way that a prosecutor, organizing his case, would present them to a jury. Circumstantial evidence points to the prosecutor's office as the ones who leaked the information. If true, they are engaged in the worst kind of injustice, convicting Michael Brown in the public press.

Ruben Carter, a boxer who was convicted of murder and served 19 years in prison before being exonerated, described the actions of the U.S. justice system like this: 
“The criminal justice system is not about justice. It is about success. Successful police officers are promoted. Successful prosecuting attorneys become judges. A successful judge goes to a higher court. … A successful our system of jurisprudence, is a careful judge, and not necessarily a wise one.”
I would be very surprised if the Grand Jury fails to exonerate Wilson in its decision. I would be surprised because the prosecution has already released to the public all the prejudicial testimony it can get its hands on and nothing that favors Michael Brown. The prosecutor in the Michael Brown case gives every evidence of being a successful prosecutor, but not a just one. 

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