In a opinion piece on grand jury rules (ADN, Sunday), Marcelle McDannel, former prosecutor turned defense attorney, opined, "(A)t this point, the secrecy of the grand jury in Ferguson is serving no other purpose than to protect the prosecutors."
What she doesn't tell you is the grand jury proceeding in the Ferguson shooting isn't secret. It's been provided to media outlets and you can Google it online -- the police and FBI interviews of witnesses, witness' testimony, expert reports, statements by the prosecutor, physical evidence, photos, videos and audio recordings, Brown's private autopsy results, and more. I wonder if McDannel looked at them.
The lawsuit McDannel references was brought by a Ferguson grand juror who wants to talk to the media about his experience, which Missouri state law prohibits. Unlike McDannel, I won't speculate on the juror's purpose or motivation.
McDannel uses the Ferguson grand juror's lawsuit to suggest grand jury secrecy rules in general are unfair, and she points the fingers at prosecutors. She doesn't tell you that the U.S. Supreme Court has decided there are numerous purposes for maintaining grand jury secrecy.
Alaska's grand jury handbook (an excellent primer available free online) adds another purpose: To ensure grand jurors can deliberate without fear of harassment or inducement.
In describing how Alaska's grand jury process works, McDannel doesn't tell you that if a defendant is indicted, the entire proceedings are turned over to the defense to review and challenge in open court and to use to cross-examine witnesses.
McDannel goes on to speculate, "I'm almost certain that allowing the grand juror to discuss his own experience will reveal that the manner in which the prosecutors presented their evidence was a significant deviation from the norm done with a specific objective: To discourage the grand jury from bringing charges against Officer Wilson."
What she didn't tell you was that the Ferguson prosecutor readily revealed he deviated from the "norm" by publishing the proceedings and explaining them at a press conference.
Let's look at the "norm " McDannel criticizes the prosecutor for deviating from. In the federal system grand juries must be used to bring felony charges. In 2010 there were 162,000 such cases. We don't have comprehensive data on state grand juries. Safe to say, there are hundreds of thousands of state grand jury proceedings annually. There are significantly more state grand jury proceedings presented annually in Anchorage alone than the U.S. Attorney's Office presents federally for all of Alaska.
Generally, the purpose of the grand jury is to determine whether "there is adequate basis for bringing a criminal charge." (Dow Jones Inc., 1998.) It's a low threshold, akin to probable cause. If met, the case may proceed to pretrial hearings or a trial jury where the evidence can be legally challenged, cross-examined and rebutted by the defense after which the government must prove the defendant guilty beyond a reasonable doubt.
Because of its limited purpose and the sheer volume of cases, ordinarily prosecutors present just a probable-cause-type basis to support the charges they think are appropriate and can later be proven at trial beyond a reasonable doubt. If their judgment is sound, the grand jury should agree. It most often does.
The Ferguson shooting was no ordinary case. For months the nation was deluged with media coverage of:
It would've been unethical to handle an "extraordinary" case in "normal" summary fashion. McDannel faulted the Ferguson prosecutor for not presenting "a carefully-tailored presentation that showcased the state's most persuasive evidence." She complained he gave the grand jury too much information. She also criticized him for not advocating for specific charges.
As a former prosecutor, McDannel must know that the American Bar Association Prosecution Standard 3-3.9 provides that a prosecutor should not bring criminal charges or let them continue unless there is sufficient admissible evidence to support a conviction.
If the Ferguson prosecutor thought there wasn't sufficient admissible evidence to support a conviction at trial, it would've been unethical for him to bring charges in this "extraordinary case" in the "normal" fashion of most grand juries. Clearly the grand jury thought there wasn't even probable cause after hearing much more evidence than is ordinarily presented.
Had the Ferguson prosecutor followed McDannel's suggested "normal" means and gotten an indictment by only presenting the evidence that would support that, what would she suggest when a trial jury found the prosecution failed to prove its case to a much higher standard of proof against a skilled defense lawyer's challenges -- an event likely to incite more violence, property damage and injuries to citizens and officers? An event arguably even more likely to occur when the defense moved for a change of venue and the jury trial took place somewhere other than Ferguson.
McDannel didn't tell you about the prosecutor's obligation to not bring charges that cannot be sustained at trial. Nor did she discuss why, in the interest of justice, the prosecutor might also want to let citizen grand jurors representing the community in this "extraordinary case" examine the evidence and see if they agree -- given the unique, extraordinary high stakes for the community and the nation that might stem from the charging decision. She just assumed he manipulated the grand jury to provide political cover for himself.
Hmm. McDannel must not think much of the intelligence of the grand jury given they were provided all the evidence and applicable charges to select from. She'd rather they'd been presented with "a carefully-tailored presentation that showcased the state's most persuasive evidence" and "advocate[d] for specific charges to be brought against Officer Wilson," regardless of whether those charges could be sustained at trial.
Val Van Brocklin is a former state and federal prosecutor in Alaska who now trains and writes for law enforcement nationwide. She lives in Anchorage.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.