GET MAD: Ferguson ADA threw the case in spectacular fasion

[BrotherIvan]

If you want to see how an ADA makes damn sure a cop goes free for murdering an unarmed teenager, please read the testimony of Dorian Johnson.

He explains how the altercation began, with Wilson backing up his cruiser and almost hitting he and Mike Brown, then opening the door and hitting them which causes the door to slam shut. Then Wilson grabs Brown by the neck and the two struggle as Brown is pushing against the door to get away.

Throughout, whenever Johnson gets close to discussing the incident, or what Wilson’s part was, she stops him and asks about the robbery at the store and them walking in the street. She does not allow him to tell the story of the shooting in any linear, clear fashion.

https://s3.amazonaws.com/s3.documentcloud.org/documents/1371051/grand-jury-volume-4.pdf

Here is but one of the questions she asks in order to lead the jury to think that Brown was a scary, doped up demon who attacked Wilson. I will use Q: for ADA Alizadeh in this exchange and A: for Dorian Johnson as in the transcript. This is after Johnson has told the story of the first encounter with Wilson and has been interrupted numerous times, including being questioned by a juror why he was walking in the middle of the street and why he didn’t obey the officer.

MS. ALIZADEH: Dorian, can I ask some questions? I know you have, at this point you’ve known Big Mike a couple of months, maybe three months max?

A: Yes.

Q: I know you’ve said that he was a great guy, you liked everything about him, right?

A: Yes, Ma’am.

Q: You considered yourself, you know, kind of a mentor?

A: Yes, Ma’am.

Q: You are older, you came from a violent background, not you violent, but you lived in a violent area?

A: Yes, Ma’am, correct.

Q: So, you know, when you go to the store and you see him just take these Cigarillos and you said he just said I’m going to take these Cigarillos, right?

A: Yes, Ma’am, correct.

Q: That’s really brash, wouldn’t you agree?

A: Yes, Ma’am.

Q: That’s like indignant. And then when the clerk tries to stop him, he pushes the clerk aside?

A: Yes, Ma’am.

Q: Doesn’t he?

A: Yes, Ma’am.

Q: You are surprised by that. And I think, you know, no one is saying that you had anything to do with planning that or even were aware it was going to happen, but just that behavior, that’s pretty brash wouldn’t you say?

A: Yes, Ma’am.

Q: And then so when you are walking back and now you heard the clerk say I’m going to call the police, let me ask you this, after he pushes the clerk aside, and I know you are watching this and if you want to watch the video because we couldn’t get it to work in the other room, we can play it again for you, but doesn’t Big Mike come back at the clerk at some point?

A: He does, but that’s almost like because the store clerk made a move like he was going towards, like I said, the first time before the store clerk actually tried to grab for Big Mike because the first initial grab the store clerk just grabbed the door and Big Mike just pushed the door.
Now, the store clerk made another step like he was trying to grab for Big Mike and that’s when it was like a real—

Q: A real push away?

A: Fast push away, and I don’t know if the store clerk was going to walk back on or anything, but that was like a stare down, like he kind of stared at him.

Q: And that was threatening, don’t you think, he is 6 foot 5 inches tall?

A: He was a small man. He was almost smaller than me, shorter than me, you are right.

Q: That would be extremely intimidating, don’t you think?

A: I could see where it made the store clerk kind of eased off.

Q: Sure

A: You know what, I will just leave this at the hands of the police.

Q: At this point, I mean, this is not behavior you are used to seeing from him, correct?

A: No Ma’am, I wasn’t aware of it.

Q: But it clearly was very much macho, I’m going to take these Cigarillos, I know he’s not saying that, but that was kind of his demeanor, like what are you going to do, stop me? I’m taking them, right?

A: Correct, yes, ma’am.

Q: Okay. So then you are walking down the street, I know you said you are kind of freaked out at this point?

A: Yes, Ma’am.

Q: And you see cop cars coming by oh, my God, you know, but Big Mike doesn’t really care does he?

A: Not so much care because when he saw, he looked at my face. I’m just walking like oh, my goodness. When I see the squad car, I kind of follow it, I want to see are they going to the store or what is going on. And once he sees that on my face, he is like just walk normal, so we are just walking.

Q: But he doesn’t even put the Cigarillos in his pocket?

A: Like I said—

Q: He has them out there like.

A: Just walking yes, yes, ma’am.

Q: Whatever, you know. He owns the street right there, right, kind of?

A: I don’t want to say he tought he owned the street, he was very bold with how—

Q: Bold, that’s a good way to put it.

I urge you to read the rest of his testimony as this went on throughout. So not only was the jury given a law as the basis of deliberation that was ruled unconstitutional thirty years ago, but they get a defense attorney masquerading as a prosecutor.

What can be done?

[BillZBubb]

1. The ADA was the police defense attorney. The victim wasn't represented.

The fix was in on this from the moment the coward Wilson pulled the trigger.

[BrotherIvan]

2. It's so obvious

What can be done other than to wait for the federal trial? This should not be allowed to get swept under the rug like this. These prosecutors are corrupt to the core.

[alcibiades_mystery]

3. Beyond outrageous

She should be disbarred.

[BrotherIvan]

4. I haven't been able to read a good portion

But everything I have read goes the same way. They were setting up the story for Wilson. It's sickening, beyond sickening.

[alcibiades_mystery]

15. There is also implicit witness intimidation, especially with Dorian Johnson

The prosecutors were essentially saying, listen, we're not charging you on a strong-armed robbery, but that's our decision, which means it could go another way at any time. This is also the reason behind the push for "perjury" charges by Wilson's lawyers and people on the right. They are seeking to intimidate witnesses. The ADA's questioning that you quoted is pretty clear witness intimidation; it's completely non-probative.

The more I see these transcripts, the more I think there's a case for the Feds to come in and charge everybody, and I don't mean just Wilson. This was a sham, and probably a criminal sham, from start to finish.

[woolldog]

44. Well said. nt

[freshwest]

20. All of those were leading questions, designed to influence jurors. Is there no judge to intervene?

One would expect in a trial that the judge would recognize that, and that a defense attorney (in this case for Michael Brown) would object to that line of questioning.

Because they weren't proving if there was probable cause to indict, apparently. It appears that Michael Brown was on trial, but in court his defense would have stopped that.

Just this slice had much more leading questions than I expected. I'm glad you read it. Did you get that impression from it?

[BrotherIvan]

21. From the portion I read, the whole thing was leading

They wanted to be absolutely 100% sure that Wilson got off, so they decided to do it in the grand jury, where they were in control, not a judge.

They would not have needed a defense lawyer for Wilson, because the prosecutor was the defense attorney.

[branford]

28. There generally is no judge in a grand jury proceeding.

It is run by the prosecutor, and leading questions are acceptable.

If an indictment issued, the only attorneys at trial in the criminal action would be the prosecutors and defense counsel for Wilson. The type of questioning, including leading questions and permissible impugning of the credibility and character of a victim and witness, would have come from Wilson's counsel at any real trial on cross-examination. There would be no way of stopping the impeachment of Mr. Johnson in an actual trial. Moreover, there is no victim's counsel in either a grand jury proceeding or criminal trial. All criminal matters are exclusively between the State and the accused. The accused's attorney is not normally even allowed to be present with his client if he chooses to testify before a grand jury.

[rwheeler31]

5. We know it was a farce

what can be done now? Of course the right just wants it to go away and there is less coverage, but we cannot just let it slide.

[BrotherIvan]

16. I don't know but something must be done about it

It is a travesty.

[Overseas]

6. K&R. I have been mad. And glad we have had attorneys and prosecutors reviewing the case.

Pointing out the many flaws and it really does seem like prosecutorial misconduct.

[BrotherIvan]

13. There needs to be consequences

They fixed the case. They shouldn't be allowed to get away with it. Disbarment at the very least.

[Overseas]

17. I'd love to see them disbarred.

[Elmer S. E. Dump]

22. Not only disbarred in MO, but across the entire country.

[Liberal_Stalwart71]

7. Not just "the right"! The racists right here on DU who support Wilson under the guise of

"waiting for all the facts" wanted this outcome too.

I refuse to shut up no matter how many of my posts are hidden.

Racism is real and until we face this real enemy, things will never change!

[BrotherIvan]

11. I have been shocked at what has been posted on DU

People just accepting Wilson's fairy tale. Saying that Mike Brown "attacked Wilson so at that point he was a felon." Not even questioning that the only person whose interest it is to lie is lying.

Johnson's testimony describes the physical evidence. Why was the car parked at such a strange angle? What was the struggle at the car but Wilson had no visible bruises?

I urge you to read his testimony at the link. There is so much that stands out as criminal on the part of the ADAs.

[gordianot]

19. The prosecuting attorney of St. Louis did a marvelous job of obstructing facts.

There are no facts other than an eighteen year old is dead without an official accounting. On every level by every measure this is wrong the only remedy is a trial for Darren Wilson by a real prosecutor.

[akbacchus_BC]

40. I agree with you!

Racism is not over in America, it came to the forefront when President Obama was elected. The fuckers in the Repug group never wanted to work with him, he thought he could work with them. They underminded him along with some deomocrats too, refuse to put a capital D to their names. All along, this President was undermined but you know, am glad he accomplished what he could. I kept asking myself, why they hate him so much, now I know!

[noiretextatique]

8. i am speechless

what a fng sham. which begs the questions: IF the shooting was justified, then why go through all of this to make it seem like it was justified? the only logical conclusion: the shooting was not justified, so let's put the victim on trial...that always works.

[BrotherIvan]

12. Because they knew the law that said an officer can shoot just for fleeingw

was ruled unconstitutional thirty years ago. They PURPOSELY gave the jury the law from 1979 and then walked it back two weeks later.

Check out this thread and watch the video for more info

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=5879866

[Volaris]

42. I hadn't seen that video clip....

This is unacceptable...

Unless there's something else relevant that I should know about what prosecutors are, and are NOT allowed to do in a legal proceeding, that ADA needs to be disbarred, and THEN brought up on charges of Obstruction of Justice, (because simple, Professional misconduct is a VAST understatement here), and unless she pulled this idiotic stunt of her own volition, I want conspiracy added as well, because I want to know who put her up to it. I want NAMES.

[akbacchus_BC]

43. Noir, Unfortunately, the stage has been

set for the police to shoot innocent black kids for being out doors after dark! That society is so sick! It happens here in Canada too, the racsim is very subtitle but it is here!

It makes a mother want to keep her son protected but he needs to socialise and he never knows that the police is going to shoot him for no reason! This is very scary!

[farmbo]

9. They needed to kill this at the Grand Jury stage...

...Because a Real Judge would never have let these APAs walk all over these witnesses.
Since there's no Judge presiding over a Grand Jury proceeding, these second-rate Assistant Prosecutors could tie them up in a pretzel.

[BrotherIvan]

10. Seems like that was the plan

What are the consequences?

[Samantha]

14. NEVER LET THE TOWN OR THE COUNTRY FORGET

Putting aside just for a moment discussion of what legal actions might be pursued in the future, the Brown family and everyone who has followed this story should do something definitive to never allow that town or people in this Country forget what happened. Perhaps that something is to think of forming a foundation in Michael Brown's memory. Ask the family attorney to consult with the establishment of the foundation and decide what components should come under its umbrella.

I can think of a number of components which I would like to suggest but of course that decision should be made by his family. For instance, fundraising to finance the organization and future endeavors should have a truly healthy potential for raising money. How should it be used? One component could be to help individuals who in the future find themselves victimized by police actions. Legal advice could be given on a pro bono basis to those victims. Financial help could be awarded as needed. Scholarship funds could be another component. Professional counseling for grieving families could be available at no cost. The list is endless.

Perhaps it is time some start to think of diverting some of the energy from the anger generated at the senseless death of Michael Brown into a channel that will both memorialize his life and reach out to assist other victims and their families. His name should be prominently a part of the foundation's name, and when public relations events arise, the constant repeitition of that name in the media will ensure Michael Brown and the tragedy of what happened to him is a story the perpetrator of the crime and the enablers which protected him will never be given the opportunity to "put behind them." The name and the tragic story of Michael Brown will haunt them forever.

Perhaps a foundation could help fund some of the future legal actions which the Brown's find they can pursue....

Just a few thoughts, BrotherIvan.

Sam

[BrotherIvan]

18. I do hope any civil suit goes to the family to use as they see fit.

There is a Trayvon Martin foundation and I'm sure they are doing great work. His mother is an inspiration.

But these prosecutors are public employees. What they did should have consequences.

Thanks for writing. Best to you and happy Thanksgiving!

[Samantha]

24. And a wonderful Thanksgiving to you and yours as well

It is always nice to run into you here.

And I agree with everything you say, and I do believe their actions will be put under the microscope by the Justice Department (just my personal opinion).

Sam

[BrotherIvan]

26. I hope so, but the DOJ has been so timid, I don't have much hope.

[Samantha]

31. I just saw another thread in this forum about the open investigations of the DOJ

You might want to check it out if you haven't yet seen it.

I did hear about two weeks ago rumors that the DOJ had said it didn't have the evidence to prove Michael Brown's civil rights had been violated. I found that statement extremely disappointing. But perhaps that rumor is not true and the DOJ's investigation is still open. We can only hope.

Sam

[branford]

23. Nothing can be done to the state District Attorney or any assistant DA's in this case

because they did not zealously try to indict Wilson.

A prosecutor generally has no legal or ethical obligation to actually charge or seek an indictment in any potentially criminal matter. Moreover, if a matter is presented to a grand jury, the prosecutor need not actually try to get an indictment or even recommend such an action to the grand jurors. There are some jurisdictions that require certain limited matters like police shootings to be brought before a grand jury, but I do not believe that St. Louis County or the state of MO have such requirements. and a prosecutor still need not support or actively pursue an indictment. This is the very essence of prosecutorial discretion. McCulloch's, and those prosecutors under his authority, actions are hardly unique in self-defense and police shootings, and fully comport with all ethical the legal guidelines.

Although prosecutorial standards are more exacting in an actual criminal trial, a prosecutor still has significant discretion in what witnesses are called and the information they choose to elicit. In fact, if they do not believe the veracity of the testimony of a prosecution witness, they are ethically bound to not call such witness so as not to suborn perjury. My legal training and common sense indicate that the prosecutors were not too impressed about the character, reliability or truthfulness of Mr. Johnson.

I would also note that unlike actual trials, grand jurors are usually permitted to ask questions of the prosecutor and witnesses, and sometimes act as de facto defense attorneys and cross-examine witnesses that any individual juror does not believe is credible.

The remaining legal options against Wilson at this point include:

1. A new state grand jury can technically be impaneled. However, McCulloch has just been reelected and will serve until at least 2018, and the governor does not have the power to appoint a special prosecutor unless McCulloch voluntarily withdraws from the case or he is legally disqualified due to a recognized conflict of interest. Since neither circumstance is likely or expected, a state criminal action, for all intent and purposes, is not going to happen.

2. The DOJ can bring a federal criminal civil rights action against Wilson. The standards and burdens of such a case are much more difficult and demanding than state murder and manslaughter charges. It is unsurprising that the leaks in the case indicate that the DOJ has already determined that sufficient evidence simply does not exist to federally indict Wilson, no less procure a conviction at trial.

3. The Brown family can bring a wrongful death action against the Town of Ferguson. Wilson would likely have to testify in such an action, at least if he is no longer in any criminal jeopardy, state or federal, that would implicate his 5th Amendment rights. However, since not only might he have qualified immunity, the town's insurance policy would pay his legal fees and indemnify him against any damages. Even if a civil jury returned a large verdict based on Wilson's malfeasance, it is unlikely he would ever have to pay a dime.

[BrotherIvan]

25. So if a prosecutor openly takes a dive

There are no consequences? That seems absurd. There is the possibility of disbarment.

[branford]

33. Simply, no.

A prosecutor generally has no obligation to actually seek an indictment in a potential criminal matter, and this includes any actions in the grand jury. This is prosecutorial discretion. Elections for District Attorney certainly have consequences.

I think that many are confused about the purposes and requirements of a grand jury. They are an investigative tool and designed, in theory, as a bulwark against an overzealous or unethical prosecutor.

Prosecutors choose what witnesses and evidence to present to the grand jury, and that is the reason why actually procuring an indictment is usually not too difficult. However, grand juries are often used by many prosecutors simply to provide political cover when they don't really want to prosecute a case, but not taking any action would have its own political costs. When their intention is to essentially punt, as appears to be the case with McCulloch, prosecutors just present everything to the grand jury. When faced with exculpatory evidence, grand juries often choose not to issue an indictment, particularly when the accused are police officers.

This is all perfectly legal, and happens more often than many realize.

[JimDandy]

39. I wonder if McCulloch has opened the

county up to Equal Protection lawsuits by future defendants he might want to prosecute, if he doesn't also allow all of them to testify to the grand jury like he allowed Wilson to and for future defendants to demand the resources of the prosecutor's office be used to defend them in much the same manner as McCulloch defended Wilson. Not sure if a claim of "prosecutorial discretion" would trump the Equal Protection clause of the 14th Amendment.

[branford]

45. There is no "equal protection" claim,

and even if there was, a prosecutor would have qualified immunity.

Other than the accused, witnesses do not have a right to testify before a grand jury. Prosecutors have full discretion whether to present a case before a grand jury, and who they will subpoena or request to testify. Suspects usually have the right to testify before a grand jury. Most choose not to because any statements can be used at trial. For instance, if a federal criminal civil rights trial ever happened, Wilson's testimony before the stat grand jury might be admissible.

A selective prosecution defense may be raised by an individual defendant at trial, but it is exceedingly difficult to prove and rarely, if ever, succeeds. It usually only comes up when a prosecutor tries to charge someone with violation of a very old, but never enforced law, because he believes a suspect deserves punishment, but no other law really applies to the conduct at issue. In any event, if the law was even remotely constitutional, the most that would happen is a defendant's case would be dismissed. Neither prosecutor, town, nor anyone else would likely suffer any legal penalties because of the prosecution other than some bad press unless.

Again, a prosecutor is not under any legal or ethical requirement to actually try to get a grand jury to indict a suspect, or even convene a grand jury, and maintains total control of the process. Absent provable and actionable corruption (e.g., bribery, blackmail, suborning perjury, etc.), a prosecutor is in unchallenged command of the grand jury process.

In many ways, it would have been more understandable if McCulloch simply stated from the onset that his investigation did not reveal the commission of any crime by Wilson and that his office had no intention of seeking any criminal charges. His using the grand jury to rubber stamp his apparent feelings about the case for political cover, although perfectly lawful, has been too confusing to people unfamiliar with the nuances of legal process, particularly while emotions are so raw.

There really is no end-run around a District Attorney's use of their prosecutorial discretion in a manner many find objectionable other than their removal by the democratic process, appointment of an alternative or special prosecutor, a procedure that varies by jurisdiction and apparently not currently applicable in MO, or another proceeding by an alternative forum with appropriate jurisdiction, such as a federal criminal rights trial.

[ReRe]

41. So, to make a long story short...

... even though an apparent miscarriage of justice has taken place, there is no recourse against it? The injustice legally stands? Injustice = Justice?

[BrotherIvan]

46. DUer 20score has a post on this in this thread

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=5880472

Rule 8.4: Misconduct:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
Like many things in law there is some subjectivity involved, but I believe it wouldn’t be too hard to make the case for disbarment.

So there is something that can be done. I don't buy the attempt to persuade otherwise in this thread.

[ReRe]

49. Thanks, BrotherIvan

If nothing else can be done, then disbarment would be a good start to getting something done, at least in the state of MO. And I agree with you... I just can't believe that something can't be done to nullify that Grand Jury and get a special independent prosecutor to take the case and start over from the beginning.

[branford]

53. None of the prosecutors will be disbarred

absent proof of criminal conduct like bribery or blackmail. A prosecutor choosing to not pursue an indictment is not an ethical violation, no matter how galling the choice.

As I stated earlier, there's no need to "nullify" the grand jury. In fact, Wilson is not yet protected by double jeopardy, and another state grand jury could actually be impaneled and vote to indict. However, this option is more theoretical than practical.

If a special prosecutor were appointed, they would be able to impanel a new state grand jury to rehear the evidence. However, since McCulloch has no actual conflict of interest and will not voluntarily withdraw, the conditions necessary for the governor to appoint a special prosecutor, and he will not go before the voters until 2018, for all intent and purposed, there will not be another state grand jury.

[branford]

51. I've been a trial attorney for over 17 years,

and I've never heard of nor can imagine a prosecutor charged with an ethical violation for choosing not to charge a suspect, or vigorously pursue an indictment, absent actionable illegality such as provable bribery, blackmail, suborning perjury, etc.

The MO Rules of Professional Conduct can be found at the provided link for reference:

http://www.law.cornell.edu/ethics/mo/code/MO_CODE.HTM

With all due respect, what you consider "subjectivity" under the Rules, would be considered laughable in an attorney disciple proceeding.

Absent the type of actual illegality mentioned above, complaints about how a prosecutor treated a witness during grand jury questioning or disagreements with members of the public on whether a trial is warranted, do not constitute any perversion of justice or ethical violation, and cannot serve as an end-run around prosecutorial discretion.

A prosecutor's discretion on whether to pursue a criminal matter is virtually unlimited, and the proper recourse is at the ballot box, not a courtroom or disciplinary proceeding.

Lastly, I'm not trying to persuade anyone to do anything. I'm simply providing my legal knowledge about a confusing area of the law. Agree, disagree or discard my offerings as you wish. However, strong convictions or righteousness do not change the most basic rules and procedures in our system.

[branford]

48. There's recourse, just not the type some here would prefer.

As I indicated, my prior post lists three other direct legal options against Wilson.

Sadly, a state criminal trial was undoubtedly the preferred option, since political and legal realities make the remaining choices quite difficult or unsatisfying.

I can almost guarantee that the Brown family will file a civil suit. Unless the family settles for some quick money, there will be a trial about the shooting of Michael Brown. Witness will be called and cross-examined, evidence will be presented, and Wilson may even testify. The family has a very good chance of prevailing in such a lawsuit. The repercussions, however, would be purely economic, and largely faced by the taxpayers of Ferguson, not Darren Wilson.

The DOJ has also not publicly and formally ruled-out a federal criminal civil rights prosecution, so all hope is not lost However, since such cases are very difficult to prove, this case's conflicting evidence and testimony renders such an action unlikely unless new evidence is discovered.

The DOJ is also investigating the entire Ferguson police department for racial issues and other improprieties. It's distinctly possible that reforms will come to the department, whether they like them or not. Wilson will be long gone by this point, so he personally will not be impacted, but the citizens of Ferguson will certainly benefit.

Lastly, come 2018, the citizens of Ferguson can vote McCulloch out of office.

[ReRe]

50. All I can say is...

... I am sick of all the injustices in this country, from Wall Street to Ferguson, MO and everything in between.

[VanillaRhapsody]

27. NOW we have a civil rights violation case...

[BrotherIvan]

36. I hope it's possible

I don't know if there is a right to justice for the victim, but there must be some kind of accountability for public servants subverting justice.

[JEB]

29. Abetting murder. eom

[BrotherIvan]

37. The coverup is just as bad as the crime

It has made cops above the law and it will most definitely lead to more innocent victims.

[marym625]

30. I cannot express the rage I feel

Absolute rage. Read the medical records and some testimony, still going through it.

John Crawford, Kajieme Powell, VonDerritt Myers, Sean Bell, Tamir Rice. Just so many.

Just absolute rage

[BrotherIvan]

35. Exactly

Just rage at the whole system.

[gvstn]

32. Hi, What law are we talking about?

"So not only was the jury given a law as the basis of deliberation that was ruled unconstitutional thirty years ago".

Appreciate the post and know this was a circus (Mayor and Governor's entitled, ignorant mendacity are beyond comprehension) but am interested in which law you are referencing.

Thanks.

[BrotherIvan]

34. It's in this thread with video of O'Donnell on MSNBC

where he lays it out in depth.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=5879866

[gvstn]

56. Thanks!

Pretty blatant ploy by the prosecution. That whole state seems remarkably corrupt and addicted to power for power's sake.

[akbacchus_BC]

38. Brother Ivan, I share how you feel!

It is outrageous that Wilson is deemed innocent. This is the story that keeps on and on and who gives a shit we ask? The audacity against blacks is appalling in the the US. Seems to me like blacks do not exist there. For fucks sake the barons made their millions on the backs of slavery. New Era, they now making their millions on the backs of Mexicans. America, land of the free, that place is injustice galore! That is how I feel. Just how I feel!

[BrotherIvan]

47. There should have been a trial

But these prosecutors were tanking the grand jury purposely, so there is no doubt they would have done the same at trial.

[BootinUp]

54. What can be done?

Well besides whipping up support for change, perhaps this ongoing federal investigation will uncover other immoral and/or illegal actions.

Perhaps the legal community will actually do something about it.

One can hope.

[Triana]

55. In a courtroom this would be called "leading the witness"

In spades.

[branford]

57. There's no rule against leading a witness in the grand jury.

The same rules as a criminal trial do not apply. Moreover, even in an actual trial, leading questions are permitted on cross-examination, and also in a direct examination under certain circumstances

[aint_no_life_nowhere]

59. They asked leading questions of Wilson

as noted by the Washington Post, feeding him answers designed to build his defense. The prosecutor is supposed to be building a case for indictment before the grand jury, not a case for defense.


“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.’’


I'm also shocked at the fact Michael Brown keeps growing, even after death. For awhile, he was 6' 2". Then he became 6' 4". Now, according to the prosecutor, he's 6' 5".

I've been an attorney in California for over 31 years and have never seen anything like this fiasco, with the leaks to the media, the failures in collecting evidence in the time after the shooting, to the apparent emphasis on presenting favorable exculpatory evidence on behalf of Wilson and framing of the grand jury proceeding in a way that seemed to present Wilson as the victim. I've talked to my colleagues in the legal profession in the last several days, including my ex boss who served in the Los Angeles DA's office and to a man and woman, they are shaking their heads.

[branford]

60. Respectfully, if you're an attorney, I cannot understand how you're surprised

about grand jury procedures or results. I've been a litigator in NYC for over 17 years, and while I may not like what happened with McCulloch and the grand jury, nothing appears to present any ethical violations.

First, leaks in criminal matters and lax evidence collection procedures are hardly unique to Brown matter matter. Do you even remember the mess that was the OJ crime scene, no less most other high-profile cases?

More importantly, as you should no doubt be aware, not only does the prosecutor usually have virtually unlimited control over the grand jury, he has no obligation to even pursue charges or an indictment in the first instance. In a typical case, where a prosecutor normally wants an indictment against a suspect, he or she will normally only present a very limited selection of inculpatory evidence to the grand jury with a strong recommendation for an indictment. Charges usually follow in short order.

However, it is fully permissible for a prosecutor present exculpatory evidence to the grand jury and even counsel against an indictment. Although rare, it certainly does happen, particularly in politically sensitive cases involving self-defense and police, as was the case with Darren Wilson. It is obvious that McCulloch did not want to pursue the case, as was clearly his prerogative under prosecutorial discretion. However, rather than take the purportedly more principle stand and simply not proceed at all, he brought the case to the grand jury to provide political cover for his original inclinations.

[aint_no_life_nowhere]

62. The grand jury is the prosecutor's show

and he has a wide latitude in how he conducts it. There's no one there representing another side who can object to such things as leading questions, even if the rules of evidence applied. But contrary to popular belief, the grand jury proceeding does not belong to the prosecutor. It belongs to his client, The People. A grand jury proceeding is not an occasion to present all the evidence or to consider both sides equally. It is a safeguard, if you will, to ensure that the interests of the people and society in pursuing those who pose a threat to society are required to answer for their actions at trial. The indicted individual has the opportunity to present a full defense, with all the rights afforded by the Constitution. In representing the People, I assume McCulloch must abide by his own Bar's rules of professional conduct which read about the same in every jurisdiction: "A lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." I submit that there are limits in how a prosecutor could conduct a grand jury proceeding in cases where his complete failure in his commitment to his client becomes a matter for ethical discipline. While rare, there have been cases in the federal courts limiting prosecutorial investigate powers through the grand jury when the scope becomes abusively broad. I'm not saying we've reached that point here, although I haven't come close to reading the full transcript. You are emphasizing that what the prosecutor has done is "permissible". I'm pointing out that simply because McCulloch can do things in a certain way means that he should. Just because a prosecutor has great leeway in how he runs the grand jury doesn't and shouldn't make him immune from criticism, especially where it appears he made an effort to exculpate possibly for political considerations to which you refer, a potentially dangerous person who killed an unarmed man. You are correct in your statement that it is "rare" for a prosecutor to present exculpatory evidence, as McCulloch did in this case. I submit that it is even rarer for a prosecutor to present exculpatory evidence in such abundance and so systematically as was done in this case. My lawyer friends which include former Deputy DAs could not believe that Wilson would be called to testify at all, much less do so for four hours, or be fed answers to questions, or have his testimony conclude with an offer to present any other testimony he wished to add in an open-ended monologue. While I don't hold up Antonin Scalia as a model jurist, I think he's 'right on' in maintaining that a grand jury proceeding should be focused on presenting inculpatory evidence. Your parting shot in your response above seems to be suggesting cowardice on the part of McCulloch because of political considerations. That's the same point made by several of my fellow lawyer friends. As you know, the grand jury investigative process at both the federal and state levels has come under a lot of criticism on the part of legal scholars. I have read a number of articles critical of the failure of federal prosecutors to seek indictments against corporate wrongdoers who wield political power. I applaud those with guts and condemn the gutless.

[branford]

64. I am most certainly not defending McCulloch's choices or intentions,

or even the overall use of grand jury process itself. In fact, because of some of the problems you note, some states rarely, if ever, use their grand jury process. However, as you appear to acknowledge there's nothing about his actions that we know of that rises to the level of an actual ethical violation. Discussions of disbarment and corruption are reckless and foolish, and add little to the community's understanding of real criminal legal process.

You interpretation of a prosecutor's purported obligations before a grand jury, while seemingly noble, does not appear to conform with the discretion due a prosecutor on whether they wish to levy charges and pursue a case at all. It is true that all attorneys "must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." It is similarly true that a prosecutor must act in the interests of justice, not just try to procure a conviction, and these duties and obligations include the right to believe a criminal proceeding is not in the people's interest, and act accordingly. The election of a district attorney certainly has consequences.

While McCulloch's decision to effectively defend Wilson might be rare, such actions are hardly unheard of, particularly in self-defense and police cases, and rarity does not necessarily imply impropriety.

As I indicated, since McCulloch obviously did not wish to proceed against Wilson, he should have simply said so, and taken his political lumps. Using the grand jury in the manner he did appeared subversive and confusing to those not familiar with the criminal process, and brought unnecessary disrepute to the justice system in the minds of many. The proper punishment for such conduct, however, is voting him out of office. Sadly, as his recent overwhelming reelection this November indicates, his constituency in St. Louis County appears happy with his work, and his current term will not end until 2018.

I would lastly note that if any of the wild accusations of illegal or truly unethical conduct against McCulloch could even be remotely justified, the DOJ and others would have sought his removal long ago. This is also true about McCulloched alleged conflicts of interest. The vertiable silence of the Eric Holder and the DOJ concerning McCulloch other than complaints about leaks (which is ironic given how the DOJ often leaks like a sieve), no less their vague and tepid references to a potential federal criminal civil rights charge against Wilson, speaks volumes of their own legal analysis of the case against Wilson.

[1StrongBlackMan]

58. Interestingly ...

had a defense attorney pursued this line of questioning at trial, it would be objected to.

[branford]

61. A grand jury proceeding is not analogous to an actual criminal trial.

Comparisons about the type and nature of questioning are not really appropriate or productive. The rules, procedures, duties and expectations are totally different.

McCulloch obviously did not think charges against Wilson were appropriate (or, more likely, politically advisable), and he acted accordingly during the grand jury proceedings. He was under no obligation to even bring the case before the grand jury or zealously pursue an indictment. Given McCulloch's inclinations, the questions and demeanor of the prosecutors in the grand jury were hardly surprising and presented no ethical problems or other actionable dilemmas.

It would certainly have been far less confusing for the general public if McCulloch chose not to present to the grand jury at all if he did not want to bring criminal charges against Wilson. However, if he lawfully exercised such an option, I imagine the criticisms of cover-ups, corruption, etc., would be even more vociferous. At least now all witness statements have been memorialized, subject to public scrutiny and available to federal prosecutors if they pursue federal criminal civil rights charges.

Simply, prosecutorial discretion is incredibly broad, and elections for District Attorney has consequences.

[treestar]

63. All those leading questions

Cross examination. Of her own witness.

[backwoodsbob]

65. so you believe

a 200ish pound cop tried to drag a 280 plus pound man into his suv through a window?

This is getting good

[seveneyes]

66. What can be done?

Accept the things you can't change and change the things you can.