Like so many people, the past few months have been filled with thoughts about the particularities of what has taken place in Ferguson, MO and the subsequent conversations about race in the United States of America. Not only have many been diving deeply into issues of being Black and male, but about the very nature of the justice system and the behavior police forces around the country.

After the decision was announced that Darren Wilson would not be indicted for the shooting death of Michael Brown (video below), like so many I was disappointed. And the more that I have read has only reinforced that disappointment.  That said, I am not an attorney, so I have turned to a few lawyer friends to help translate some of what has been going on as well as get some more opinions from people I trust.

Thanks to all who are willing to offer their voices to the mix.


Michael Gizzi,  Illinois State UniversityMy interview with Michael Gizzi

1) Please explain the Grand Jury Process: why does it exist, who is chosen to serve, what is the burden of proof, is there any accountability for decisions? Anything else that would be helpful as we think about the Ferguson decision?

A grand jury is convened for the sole purpose of determining whether probable cause exists to indict an individual of a criminal charge, and thus to proceed to trial. Grand Juries exist to investigate crime and determine whether a criminal trial is warranted. Their origins date back to the time of Magna Carta in England, and the Fifth Amendment to the U.S. Constitution provides the right to be tried only after indicted by a Grand Jury. Yet, grand juries are not as prevalent today as they once were, and are only used in about half of the states. In most state cases prosecutors file an “information” with the Court, indicating the charges, and the judge then holds a preliminary hearing to determine if there is probable cause to try the defendant.

When used, grand juries are investigative bodies that have the authority to issue a “true bill” or indictment in a case if they find that there is probable cause that the suspect committed a crime. Probable cause is the same standard used for police to arrest someone, and is the basis for a warrant for government to conduct a search or seizure.

The Supreme Court has interpreted probable cause as a fluid, practical, common sense concept. Writing in Draper v. United States (1959), the Court said “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” In 1983, in Illinois v. Gates, the Court utilized a “totality of the circumstances” standard to measure probable cause. Look at all the facts, and make a judgement about whether there is enough evidence to arrest, or to search, or to indict. On a scale of 1 to 100, probable cause can be thought of as a slightly higher than 50% standard of guilt. It is enough to launch the adversarial process against a defendant, but a much lower standard than the “beyond a reasonable doubt” needed to convict. Totality of circumstances is an extremely malleable, low standard for determining probable cause.

Historically, the grand jury served to protect the people, by making sure that government actors were held accountable to citizens when they brought criminal charges against a defendant. But the reality of the modern grand jury is that it is an almost entirely one-sided affair. A grand jury “investigates” an alleged crime, but the evidence brought to it is entirely provided by the prosecution. It is not an adversarial process. It is not a process in which two sides of an issue are brought to bear. The prosecutor has an agenda, and tries to present evidence in a way that will demonstrate probable cause — given the low thresh-hold of totality of the circumstances — this is an easy task to do.

In the Ferguson case, it is not at all apparent that the prosecutor wanted to indict Wilson. Indeed, the grand jury appears to have been used to provide cover in the desire NOT to indict. When you read the transcript of the testimony of Office Wilson, it reads more like the prosecutor is questioning his client the way a defense attorney would if the client chose to take the stand. Indeed, there was no real cross-examination of the witness. He was lobbed slow pitch soft balls, and never asked hard questions, like “why if Brown solidly “full forced” punched him in the face two times, did you have no injuries to reflect that?” Why is taking one step towards Wilson “charging him?” Wilson was not treated as a suspect, he was treated as a witness. Had he been treated otherwise, I doubt Wilson’s attorney’s would have permitted him to testify.

Why did these things not happen? Well, they didn’t happen, because the prosecutor apparently did not view Wilson as the wrong-doer. The entire grand jury provided the prosecutor “cover” and was used to take the blame for not trying Wilson. Yet, the grand jury almost always does exactly what the prosecutor wants, because the prosecutor controls all of the information the grand jury receives. We have to realize that the grand jury reflects the choices of the prosecution. A grand jury proceeding is not a trial.

2) How much power influence does this prosecutor have in this process? 

The prosecutor began his comments by offering condolence to the family of Michael Brown, but his criticism of social media was both offensive and misguided. If anything, the evidence that has come forth has made it clear that the Ferguson and St Louis police engaged in much manipulation over the past few months, spinning the case. Remember the claims that Wilson was severely beaten by Brown? The photos released made it clear that he had at best, minor bruises. The attacks on social media were baseless. They were simply an effort to deflect from the actions of the Ferguson Police Department and the intent to avoid prosecution of Wilson.

The prosecutor in a grand jury has almost total power. He alone controls the evidence that is presented; he alone selects WHICH evidence to bring forward. He alone provides the “spin” on the evidence. Had the prosecutor been inclined to seek a true bill, then some of Wilson’s comments alone, could have probably been enough, under the totality of the circumstances to warrant the indictment.

The prosecutor’s “lecture” on national television made it look like the grand jury had in effect tried the case. But that is inherently deceptive. It did nothing of the sort. It heard one narrative. In listening to the prosecutor, in many ways it felt like the grand jury proceeding was a trial against Michael Brown.

3) I do believe in the legal system, but it seems that when it comes to the police involvement, issues of race and/or socioeconomic there are often inconsistencies that creates distrust and suspicion of the system. Thoughts?

This is the million dollar question and issue, and deserves a full essay in response. There is overwhelming evidence that racial minorities are treated differently by police, across the country. The racial profiling data we have from numerous sources, and from cities large and small, make this clear. But let’s consider this instead.

The police and prosecution are co-dependent. They need each other and exist in a exchange relationship. The police make arrests, but those arrests have no meaning if they are not prosecuted. The prosecution relies almost entirely on the police for making arrests, and for providing the bulk of the evidence used in their cases. They are partners. One of the consequences of this is a strong desire by prosecutors to avoid trying police officers for on-the-job shootings. The unwillingness of prosecutors to indict police officers involved in shootings serves to protect that relationship, but it also results in generating deep distrust by the public, through the appearance that in the criminal justice system, the cop can do no wrong.

4) Seems like this is not the end for Darren Wilson and other officials in Ferguson. so what, if any, might be next in the legal process: federal, criminal, or civil?

I can easily see a civil suit filed by Brown’s family for wrongful death against Wilson and the Ferguson Police Department; I would not at all be surprised to see a federal civil rights suit brought by the Department of Justice. I suspect federal criminal charges are less likely, but not impossible. Remember, there is no double jeopardy. Wilson has not been tried for anything, he was just not indicted.

5) Who should we be reading or following for helpful information about the Ferguson case in particular and the justice system in general.

In terms of who to read, Michelle Alexander’s book The New Jim Crow: Mass Incarceration in the Age of Colorblindness does an excellent job exploring the issues of the problems of race and the criminal justice system. The book is not without flaws however, but it paints a compelling picture of how the courts have immunized the criminal justice system from claims of racial bias.

The aftermath of Ferguson has resulted in significant attention given to the militarization of policing. On that, there is no better read than Radley Balko’s The Rise of the Warrior Cop: The Militarization of America’s Police Forces.

For the single most compelling academic work on the power of prosecutors, I highly recommend William Stuntz’ The Collapse of American Criminal Justice. It is not an easy read, but it is well worth the time. The book considers both prosecutors, the decline of jury trials, and how race has impacted the system. It is a must read. A shorter, easier read is Angela Davis, Arbitrary Justice: The Power of the American Prosecutor.

In terms of who the follow? I’d strongly recommend following the new organization, “The Marshall Project,” an independent non-partisan journalistic voice covering the criminal justice system, headed by former New York Times Editor Bill Keller. Their daily email provides a wealth of information. See: https://www.themarshallproject.org.


Thanks so much Michael for taking the time to jot down some reflections.

Here is the video of the announcement from PBS Newshour in case you missed it . . .

Michael Gizzi is an associate professor of criminal justice who teaches constitutional law at Illinois State University, and holds a Ph.D. in political science from The State University of New York at Albany. His blog can be found at: michaelgizzi.tumblr.com and on twitter: @rockymtnhigh. He guest blogged here previously, on the US Supreme Court Hobby Lobby decision.

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