Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
from the we-know-its-broken,-but-it's-going-to-be-fixed-from-the-inside? dept
Strange things happen when cops face grand juries. The system -- which is generally a streamlined prosecutorial rubber stamp -- seizes up. Two grand juries, within a few weeks of each other, faced the sort of "challenge" they face day after day: meet the low bar of "probable cause" to return an indictment. This "probable cause" bar is even lower than what cops face when they seek warrants. All there has to be is enough of a hint of evidence that the criminal case can be pursued.
In both cases -- New York and Ferguson -- no indictment was returned. Suspicions that prosecutors went into the proceedings acting as defense counsels for the accused cops have been confirmed. The massive amount of evidence presented to the Ferguson grand jury was released to the public in a gesture of transparency, but it only served to show that the accused cop's case was handled much differently than the average citizen's would be.
A recently-filed lawsuit seeking to overturn the lifetime ban on discussing grand jury cases detailed an unnamed juror's observations about the proceedings, noting they were significantly different than previous cases the juror had served on. The same day the ACLU filed its lawsuit, a St. Louis citizen's group called The Ethics Project filed an misconduct complaint against Bob McCulloch with the Office of Chief Disciplinary Counsel. The complaint [pdf link] alleges several violations, including the introduction of perjured testimony, presentation of unconstitutional and outdated legal instructions to the grand jury and actively guiding the proceedings to their eventual outcome. The complaint also names assistant county prosecutors Kathy Alizadeh and Sheila Whirley.
Frankly, as much as I'd like to see a deeper probe into the Ferguson grand jury's handling, I doubt this complaint will be the one to light the fuse. It's a mess. The presentation is sloppy and elliptical. Complaints are presented, only to be fully rehashed pages later. Arguments lapse into near-incoherence and writers needlessly insert inflammatory language, making it difficult to take the complaint seriously.
Sentences like this will do very little to encourage the disciplinary office to move forward with an investigation.
Prosecutors were not only negligent and acted with incompetence by failing to present a case that would be most favorable to the plaintiff, The State of Missouri, prior and subsequent actions of the County Prosecutor when viewed in their totality suggest that the case was intentionally represented in such a manner and to such a degree that it failed to render justice in this case by indicting Darren Wilson and has perpetuated a dangerous precedence of protecting law enforcement from prosecution no matter how egregious, reckless or intentional their acts of brutality or murder.The underlying point -- that grand juries "indict ham sandwiches" because they are supposed to view the evidence in a light "most favorable to the plaintiff" (the prosecutor) -- is muffled by the sudden, sharp noise of ax-grinding. A formal complaint is no place for language this opinionated.
A majority of the complaint is on point, if repetitively and at excessive length. The key complaint here is the presentation of contradicting and outdated instructions to the jury.
Kathi Alizadeh, with the assistance of Sheila Whirley and presumably the knowledge of McCulloch, presented an outdated statute towards the beginning of the Grand Jury hearings on September 16th (Volume 5 page 5) In a so-called attempt to correct the misleading the Grand Jurors were updated with more misinformation on (November 21st 2014 volume 24 page 132). Nineteen days and countless testimonies later the grand jurors are presented a 'reduced down statute so that it is applicable to this case.' The statement sounds leading and the statute is yet altered and not explained to the jurors correctly. Alizadeh hands the jurors a statement titled 'law enforcements officer's use of force when making an arrest.'The transcripts provide more insight into this misconduct claim. The Sept. 16th transcript has the outdated statute being presented to the grand jury, along with the seemingly unnecessary information that there is a concurrent federal investigation into Michael Brown's shooting.
I'm going to pass out to you all, you all are going to receive a copy of a statute. It is section 563.046, and it is, it says law enforcement officers use of force in making an arrest -- what is permissible, what force is permissible and when in making an arrest by a police officer.This leads directly into Alizadeh's admission that she's mislabeled two exhibits related to a certain witness, another of the misconduct allegations contained in the complaint.
I also want to point out to you, I know you have probably heard or know that there also is a joint federal investigation that's going on at the same time. And several of our witnesses that you are going to hear from are also being interviewed by FBI agents or federal agents. And I want you to make sure you understand the issues that are before you, may be different than the issues in any federal investigation.
Their investigation involves civil rights violations. This investigation involves whether there is criminal liability on the part of the officer involved in the shooting. So I can't tell you what the law is on the civil rights issues, but don't be confused about, you know, for example, what are the policies of the police department necessarily doesn't have anything to do with your decision. You certainly have the right to know these things if you wish to know these things, but keep in mind that there is a separate and distinct investigation going on by the feds involving civil rights violation or potential civil rights violation.
As the complaint points out, this outdated use of force statute was half-heartedly retracted by Alizadeh when presenting the grand jurors with the charges to be considered.
From the Nov. 21st transcript:
MS WHIRLEY: We have prepared the law for you, we have prepared the relevant statutes, and Kathi is going to grab the indictments, they are ready. We just need to bring them in here and I'll pass this around.[The emphaized sentences will become relevant in a little bit.] The prosecutors then switch things up, presenting information that would steer jurors away from an indictment.
We have kind of reduced down the statute so that it is applicable to this case and easier to understand and read… So we're going to the statutes, and will give the foreperson the indictments and I will pick up the extras.
MS. ALIZADEH: So the indictments that we have prepared there is an indictment for murder in the first degree, a Class A felony and armed criminal action and unclassified felony, there is two copies.
There is indictment for murder in the second degree and armed criminal, two copies.
An indictment for voluntary manslaughter, a Class felony, and armed criminal action, two copies.
An indictment for involuntary manslaughter in the first degree and armed criminal action, two copies.
And involuntary manslaughter in the second degree and armed criminal action, two copies.
MS. WHIRLEY: The relevant statute it pretty much lays out the elements of the crimes that you have indictments for. It also has definitions that might be applicable to the crimes that are laid out in the statutes that you are looking at, it is not a statute, it is an indictment.
The standard of proof is probable cause, we did confirm that. So you guys, that is what you have been working with probable cause all along since you have been grand jurors and that doesn't change. Even though this has been a very long, arduous task going through this evidence. Your standard of proof is still probable cause. You're not here to determine guilt or not guilty, it is probable cause, is it enough to go to trial.
Now, what makes this a little bit different is that if you will look on page, the first page, it talks about assault of a law enforcement officer in the first degree. And that's part of the indictment because the officer is saying he was arresting him for assaulting him. So that's what you would be considering in your deliberation and we have provided you with definitions of assault in the first degree, on the second page is assault in the second degree and the third degree. And then also a law enforcement officer's use of force in making an arrest. An officer can use force in making an arrest, got that laid out for you.And here comes Alizadeh to admit she screwed up two months earlier by handing out a statute that is both outdated and fails to comply with Supreme Court rulings.
MS. ALIZADEH: Real quick, can I interrupt about something?So, the jurors are asked to disregard something they've been using for two months… at the last minute as they head towards their deliberations.
MS . WHIRLEY: Sure .
MS. ALIZADEH: Previously in the very beginning of this process I printed out a statute for you that was, the statute in Missouri for the use of force to effect an arrest. So if you all want to get those out. What we have discovered, and we have been going along with this, doing our research, is that the statute in the State of Missouri does not comply with the case law.
[...] And so the statute for the use of force to effect an arrest in the State of Missouri does not comply with Missouri Supreme, I'm sorry, United States Supreme Court cases.
And so what Sheila has come up with is a statement of the law as to when an officer can use force to effect an arrest, that does track our Missouri Statute, but also takes into consideration what the Supreme Court says, okay.
So the statute I gave you, if you want to fold that in half just so that you know don't necessarily rely on that because there is a portion of that that doesn't comply with the law. And then the thing that Sheila is giving you, that statement about use of force to effect an arrest, is that what you called it, is that the title.
MS . WHIRLEY: -- of force in making an arrest, yes.
MS. ALIZADEH: That does correctly state what when he can use deadly force in effecting an arrest, okay. I don't want you to get confused and don't rely on that copy or that print-out of the statute that I've given you a long time ago.
MS. WHIRLEY: Did you have a question?
GRAND JUROR: So we're to disregard this.
MS. ALIZADEH: It is not entirely I don't know incorrect or inaccurate, but there is something in it that's not correct, ignore it totally.
And then there's this:
[Y]ou must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. And only if you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.Which contradicts Alizadeh's own words from the previous page:
And the one thing that Sheila has explained as far as what you must find and as she said, it is kind of in Missouri it is kind of, the State has to prove in a criminal trial, the State has to prove that the person did not act in lawful self-defense or did not use lawful force in making, it is kind of like we have to prove the negative.So, after making it clear that a grand jury doesn't deliver a guilty/not guilty verdict (see above), Alizadeh instructs the grand jury to act like a trial jury and make determinations as to whether Darren Wilson's shooting of Michael Brown was defensible. The grand jury only has to determine whether probable cause exists to move forward with criminal charges, but here the prosecutors instruct the grand jury to weigh both sides and only true bill if its able to "prove a negative." That's now how this is supposed to work.
These moments are the strongest evidence of prosecutorial misconduct. There are others listed, but the presentation of an outdated (and unconstitutional) statute -- one walked back at the last minute -- aligns the best with the "candor towards tribunal" rule cited at the beginning of the complaint.
Also noted are the prosecution's leading questions -- particularly in terms of its very friendly interview with Darren Wilson, in which the officer was guided back on point anytime he strayed into murkier areas. There's also the fact that knowingly false testimony was introduced by the prosecution. Bob McCulloch's long-winded post-no bill statement mentioned the contradictory testimony given by several witnesses, indicating he knew he was putting liars on the stand (so to speak). Additionally, Wilson's own testimony regarding his knowledge of Michael Brown's participation in a robbery changed over the course of time. Statements given prior to the grand jury proceedings made it clear Wilson did not know this fact when he encountered Brown, but his sworn testimony claims he did. This change of memory went unchallenged by the county's prosecutors.
The complaint also calls attention to McCulloch's inexplicable (but not really) decision to stall the announcement of the grand jury's findings. While this may not be actual evidence of prosecutorial misconduct, there's no question this announcement would have been better received during daylight hours. His choice to deliver it at 8 pm -- eight hours after the grand jury had reached its decision -- was deliberate, allowing him to chastise the media even as it filled with images of burning buildings and looters. This allowed McCulloch to send the only message he didn't feel like vocalizing -- that Michael Brown and his supporters were violent criminals and the only thing standing between civilized society and the chaos filling the screen were brave officers like Darren Wilson.
There may eventually be an investigation into the handling of this case, but I don't expect any damning findings or meaningful disciplinary actions to come of it. The lack of an indictment speaks for itself. The prosecutorial lap dog remains steadfast.
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Filed Under: bob mcculloch, ferguson, grand jury, missouri
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The handling of this incident at every level so far has been fucking disgusting.
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By the way in the land down under we inherited the grand jury system from the English legal system. We got rid of that system forty years ago because it was a waste of money and redundant, the prosecutor was already required to select charges and bring prosecutions. Prosecutors are not allowed to big note themselves, and the grand juries had turned into prosecutor grand stands
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Most believe the prosecutor softened the version of how events played out, and thus in turn Wilson's conduct would be viewed in a better light than how if this was joe citizen would have gone.
Not long ago, one of those members of that Grand Jury filed suit to get the courts permission to speak out about his interpretation of the case and how it was laid out.
Since that Juror decided to file suit, now there has been a suggestion put out that this juror isn't concerned with how the prosecutor laid out his case against Wilson, rather that this is a cash grab.
Why a cash grab you might think....Well the belief is that this juror is looking to cash in, by doing interviews for print and television, book deals and being paid for those hence why the juror filed suit to relinquish him from the secrecy oath that this juror was bound by.
We all know the juror needs the court to grant this juror permission to speak without fear of legal reprisal. Is this juror looking to cash in, perhaps... One could see it in that light.
Could this juror feel that after the case and Wison was not indicted and upon hearing the reports in the media of how events took place that night and the contradiction of how events unfolded when Wilson shot Brown bothered the juror enough to come forward with the desire to speak, that seems reasonable.
The are a lot of parties that would like to make sure that whatever was said to the jurors hearing the Wilson case, never comes to light.
This juror has never said they are looking to cash in on what took place in that Grand Jury, but yet it has been inferred this is the juror's intent.
How would anyone know that? The juror hasn't said that, all they have expressed is a desire to speak up about the case with out ending up facing a charge for doing such.
There have been a lot of people on the law enforcement side who sure don't want to discuss specifics with the Wilson/Brown case and this has been since the shooting took place.
One has to wonder how the theory this juror was just looking to cash in was propagated to the public and media, I am of the belief it is the very same people who wanted this shooting was justified.
One day we will find out the truth, it's really just a matter of when.
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From the very beginning of Brown's shooting, the Law Enforcement side of the incident has taken a very proactive stance at keeping how the incident took place, where and how the events unfolded under wraps.
Now usually Law Enforcement will let some details out, but in this case the have tried to control the information from the very beginning.
They have tried to control anyone who wanted to know more of the details, from media and the public.... and when questions were asked, Law Enforcement put forth efforts to stifle any information leaking out.
This was done thru a variety of means, financial intimidation and physical intimidation and unlawful intimidation.
The Law Enforcement side has gone leaps and bounds to keep the lid on how and what led up to Brown's death, it has been a coordinated effort from the beginning.
Would the power that be on the Law Enforcement side of this try to discredit someone who wanted to speak up about how this case was presented to the Grand Jury, given all that has taken place since this shooting occurred, I am of the belief they would and have.
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if the police are treated as above the laws then there are no laws. Ordinary people will seek to re address their grievances the wild west way. More and more of us who would have sat on the sidelines will cheer them on, as opposed to supporting dirty cops.
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That's only speaking in principle, however, about grand jury presentations in general. If - as seems highly likely - the prosecutor would not have allowed such contradictory witnesses to appear before the grand jury in an ordinary case, then the fact that he did do so in this highly unusual case could indeed at least potentially constitute prosecutorial misconduct.
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The problem is putting a witness on the stand knowing they're going to lie. Though I don't know if that happened in this case.
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The trouble arises when it's only done for a special occasion, rather than as a routine prosecutorial tactic.
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I disagree, I see prosecutors intentionally misleading juries as a serious problem, even worse if it's a matter of routine. I don't know how you can view that as an acceptable part of something that calls itself a justice system.
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off-topic
http://www.usatoday.com/story/news/nation/2015/01/13/south-carolina-police-killing-mistrial/216 80523/
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The prosecutor may believe they know which witness is telling the truth, but they may be wrong. Which is better, from the perspective of achieving justice: for the prosecutor to present only the witnesses which support their preferred narrative, or for the prosecutor to present both sets of witnesses and let the jury decide?
Now, there may be other reasons why presenting witnesses who run contrary to the prosecution's narrative would not be the best idea in a grand jury presentation. But that doesn't mean that there's necessarily something inherently wrong with doing so - only that those other reasons may trump in some cases.
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But if that testimony is false, then it is not really contradictory testimony at all. It's illegitimate testimony. If that testimony was known to be false, then everyone who knew it and acted as if it were honest should be prosecuted for contempt of court.
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They weren't? Could have fooled me.
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They weren't? Could have fooled me.
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Ideally, if the prosecution suspects the veracity of a piece of evidence, they should keep investigating until they've verified it. At worst, everything the prosecution knows about all the evidence must be available to the defense so that they can challenge it.
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I think they were saying maybe it was OK because Wilson was being assaulted. Somehow I think the prosecution would not have brought that up if the subject hadn't been a police officer.
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I don't see a substantive difference between "presenting a witness whose testimony runs counter to the narrative which the prosecutor thinks is the truth" and "presenting a witness whom the prosecutor knows is lying". In either case, deciding not to present such a witness results in one side being left out, based entirely on the prosecutor's judgment about what the actual truth is - and no matter what evidence the prosecutor is working from, the prosecutor can be wrong about what the truth is. (Otherwise, there would generally be no point in having the trial, much less the grand-jury presentation.)
There's nothing inherently wrong with a policy of never presenting such witnesses at the grand-jury stage, and leaving the presentment of such contradictory evidence to the actual trial - although I suspect that that approach might be part of what leads to the "a prosecutor can get a grand jury to indict a ham sandwich" scenario, simply because the grand jury's decision is made based entirely on the evidence which is favorable to the prosecutor's version of events.
But there also wouldn't be anything inherently wrong with a policy of routinely presenting such witnesses at the grand-jury stage, without taking a position as to which ones are correct/honest, and leaving that question up to the members of the grand jury rather than to the prosecutor - in much the same way the members of a petit jury are the "finders of fact" in a jury trial.
The latter approach would almost certainly decrease the number of convictions achieved, by reducing the number of cases which actually make it to the point of a trial; it might therefore be argued to also decrease justice, although that could probably be disputed. The trade-off, however, is that it would also avoid the costs - both to the state (i.e. the taxpayer), and to the defendants - involved in the trials which end up not happening.
The problem - and the room for accusations of prosecutorial misconduct - arises when the decision of whether to present such witnesses is made selectively, rather than being a matter of routine. That can lead, as in this case it apparently has, to the perception that the prosecutor makes that decision based on whether or not they actually want to get an indictment. It's akin, in a certain sense, to the reasons why "selective prosecution" is a problem and a thing.
Essentially, my argument is that it is ultimately not possible for the prosecution to "know" that a given witness's testimony is false, much less that that witness is lying rather than being mistaken; it is only possible for the prosecution to believe that the testimony is false.
Yes, if the prosecution were to somehow "know" that a given witness is lying (or that a given piece of non-testimonial evidence has been faked), then everything you say would hold true. I simply don't see how it can be possible to have that level of certainty about what the truth is, while still having little enough certainty that there's actually a need for a trial in the first place.
The issue of the truth, falsehood, or even applicability of a given piece of evidence or testimony is ultimately a judgment call. The question is, to whom do we want to give the power to make that call, at the grand-jury stage: the prosecutor, or the grand jury?
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I see two substantive differences.
The first is that if the prosecutor knows a witness is lying, then the prosecutor is helping the witness to break the law by violating the oath he takes when sworn in.
The second is that the prosecutor's job is to help the court determine truth. Knowingly lying in court is the exact opposite of that.
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Both.
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Surely the cause of helping the court to determine truth is better served by presenting multiple sides of the story, which the court (read: grand jury) can then judge for itself, rather than pre-determining which side (or amalgam thereof) you think is the truth and only presenting that one?
In the trial which results if there is an indictment, this goal is purportedly served by the adversarial process, in which the prosecution presents one side and the defense presents another (and, possibly, amici curiae present yet others). But in the grand jury there is no defense, there is only the prosecution - so if multiple sides are to be presented for the grand jury to consider in determining truth, it is the prosecution which must present them.
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We're talking about a legal proceeding, so "know" in the legal sense, not in the epistemological sense. If a prosecutor has clear and conclusive evidence that something is not true, and presents it to the court as though it is, would you have a problem with that?
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But that would be because the prosecutor presented it as if it were true, not because the prosecutor presented it at all.
If the prosecutor had presented both the evidence that the thing is true and the clear and confusing evidence to the contrary, I would not call that "presenting it as if it is true", and I would not see a problem with it - at least not without further aggravating circumstances.
With the evidence in both directions presented, the grand jury could draw its own conclusions from that evidence - and if they conclude that the thing is true, then the evidence otherwise must not really have been quite so clear and conclusive, after all.
Now, I'm not saying that the prosecutor has to present the evidence in both directions, in that way - only that there's nothing inherently wrong with doing so.
There would, however, be something inherently wrong with presenting only evidence indicating that the thing is true, and not the clear and conclusive evidence that it is not.
This becomes an issue when the evidence is not so clear and conclusive in either direction, and a judgment call needs to be made - and, presumably, that's much of the point of having a trial or a grand-jury presentment in the first place.
To require the prosecutor to make that judgment call, so that the grand jury is presented only with the evidence for one conclusion, is to risk having the grand jury be presented only with the evidence for the conclusion which is not true - when the prosecutor was in possession of evidence to the contrary, and simply chose not to present it, not out of an intent towards falsehood but because the prosecutor believed it was false.
If the prosecutor instead has the option to present both the evidence for and the evidence against - even when that evidence includes contradictory testimony, in which some witnesses must be lying - and let the grand jury draw their own conclusions, that seems to me to be a good thing.
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I don't agree with that, either! It's also not what I said. I'm talking about when the prosecutor (or defense attorney, for that matter) knows that the witness is lying.
Witnesses are notoriously unreliable, and will often contradict each other. No problem there. Simply being wrong isn't lying, so there's no problem there either.
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