Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury

[hue]

http://thinkprogress.org/justice/2014/11/26/3597322/justice-scalia-explains-what-was-wrong-with-the-ferguson-grand-jury/

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 jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s 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 didn’t 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 Scalia’s description of the role of the grand jury to what the prosecutors told the Ferguson grand jury before they started their deliberations:

[eridani]

1. You know things are really bad when even Scalia calls them out n/t

[tk2kewl]

11. in fairness to Antonin who would never call out these champions of justice

the quote is from 1992

[Rex]

2. Just what the poster said above me, how fucked up are the proceedings when you have Scarface

dissenting with the outcome!? Usually all he cares about is money.

[SomethingFishy]

8. He's not really though, that was written in 1992...

He's been silent.

[savalez]

3. It was basically a defense trial with no prosecution. n/t

[KingCharlemagne]

12. Or a prosecution of every one and everything but the person who

fired the shot.

I saw one commentator argue that McCulloch used Monday's press conference to 'settle scores' with some of those he prosecuted in the GJ: the press, social media and eyewitnesses of color. That is a comment that will stick with me for a long time.

[lame54]

4. Disbar him

[SunSeeker]

5. Scalia would be fine with what happened in this case.

Scalia is nothing if not results oriented. What he said before when the defendant was not a cop has no bearing on this case. Scalia has gone against his own precedent to help the party he favors, despite being called out for it by the dissent. He is shameless.

[dballance]

6. When you have Scalia making public statements you know you've jumped the shark.

Wow, A Supreme Court Associate Justice making public statements in contradiction of the way a state handled its case before the grand jury. That is pretty major.

Especially when it comes to Scalia. The guy who infamously wrote it's okay to execute an innocent person as long as all the rules were followed.

How far astray must McColloch have gone to get that sort of reaction?

[Wella]

7. Scalia has made no public statement about Ferguson. This article cites a 1992 quote of his.

I understand the desire to find fault with the Ferguson GJ but misrepresenting the truth is not helpful.

[Scuba]

9. I'm sure Scalia will be highly critical of the Grand Jury process in Ferguson. Not.

[Odin2005]

10. Damn, the last cold snap made it all the way to Hell???

[aint_no_life_nowhere]

13. The prosecutors were feeding Wilson the answers they wanted in their questions

The Washington Post examined portions of Wilson's testimony and found it to contain leading questions (or questions that suggest the answer). This is the opposite of cross examination.

“So you got out of the car, you are running, you are telling him to stop; is that right?

“Correct,’’ Wilson responds.

“And he’s not listening?’’ the prosecutor asks.

“No,’’ Wilson says.

At another point, a prosecutor tells Wilson that she doesn’t want to “put words in your mouth” even while asking that, as Brown was allegedly striking the officer in the face as he sat in his police car, “it was your opinion that you needed to pull out your weapon?’’

“I felt another one of those punches in my face could knock me out or worse,’’ Wilson testified. “I mean, it was, he’s obviously bigger than I was and stronger and I’ve already taken two to the face and . . . the third one could be fatal if it hit me right.’’