What Happened in Ferguson and New York

Introduction

As sometimes happens on this blog, at times I feel it necessary to step out of my usual format of getting into the nitty-gritty of areas of law I practice, and talk about current events.  These posts will cover practice areas I do not practice, and do not intend to provide any practical considerations for someone going through the process - just to offer an explanation of what's happening.  These posts tend to also be imbued with my own opinions.

It's very hard right now for me to think of doing a post on something other than the events in Ferguson and New York.  Two grand juries have refused to indict two white police officers who killed two black men in the line of duty.  Since then, I have been inundated with questions from friends about what it all means and what I think.  In today's blog post, I'll cover a little bit about what happened, why I believe the grand jury got it wrong in both cases, my best guesses on why the grand juries didn't indict, and some thoughts on where the cases go from here.

So, what happened?

In Ferguson, Missouri back in August, a young black man named Michael Brown was jaywalking on a local street.  A police officer asked him to stop jaywalking, and that's about where the generally accepted version of events ends.  It picks up again with Michael Brown lying dead on the street, having been shot by the officer.  The officer claims Mr. Brown attacked him, even reaching for his gun in the police car, began to flee, then turned around and charged at the officer.  Several witnesses back up this claim.  Other witnesses, however, say that Brown was attempting to surrender, but having already had an altercation, the officer shot him dead.

In New York, back in July, Eric Garner, a middle-aged black man, was suspected by several police officers of selling loose cigarettes.  This is illegal because cigarette sales are tightly regulated and taxed, and privately selling individual cigarettes out of the pack is a form of tax evasion.  Nonetheless, it is a relatively minor crime.  Garner denied selling cigarettes, and when the officers moved to arrest him, he swatted their arms away.  Treating this as resistance, the officers attempted to force him to arrest, with one officer placing Garner in a chokehold.  Garner, who suffered from asthma, started saying over and over again (nine times in total) that he couldn't breathe, but the officer kept him in the chokehold until the other officers had him in handcuffs.  As a result, Garner went into cardiac arrest and died.  The facts are much less in dispute in Garner's case, since this was all caught on video.

In both cases, the police resisted conducting a criminal investigation at first, but public pressure finally forced them to.  In both cases, a grand jury was convened to decide whether to bring charges against the officers involved.  In both cases, the grand jury ultimately decided not to charge.

What is a "grand jury" anyways?

A grand jury (as opposed to a "petite jury," which is the technical name for a jury during a trial) is a group of citizens brought together to consider bringing criminal charges.  In many states a felony charge can only brought by a grand jury.  Grand juries are usually larger than petite juries, and usually hear more than one case when they are composed - however, if a case is especially complicated, they may hear only that one.

The only right a potential defendant has at a grand jury is to give the grand jury a statement.  Otherwise, only the prosecutor can present evidence, and the prosecutor chooses what evidence to present.  The prosecutor is not required to show a grand jury any evidence that might point to innocence.  Further, the grand jury's burden of proof is "probable cause," usually defined as saying there is enough evidence to say that a reasonable person would believe a crime has been committed.  This is a very low standard of proof.  Much lower than the "beyond a reasonable doubt" of a criminal trial, even below the "preponderance of evidence" of a civil trial.  If you were to express burdens of proof as "percent certainty" that something happened, I've usually heard it said that "beyond a reasonable doubt" is 95%, "clear and convincing evidence" is 75%, "preponderance of the evidence" is 50.1% and "probable cause" is 25%.

So, as you can imagine, the deck is usually stacked against defendants in a grand jury.  Only the prosecutor presents evidence, he can choose what evidence to present, and the jurors basically need to think there's only about a 25% chance that a crime was committed to indict.

Why I think the grand juries got it wrong

I've looked at the documents and evidence presented to the grand jury in Ferguson.  That information still hasn't been released in New York, but we do have a pretty clear picture of events from the video.  I am convinced the grand juries made the wrong decision in both cases.

In Ferguson, there was conflicting testimony as to what occurred.  That being said, conflicting testimony shouldn't matter at the grand jury stage - judging which witnesses are more credible is for a petite jury at trial, not a grand jury.  Instead, the grand jury needs only look at the evidence to see if there is enough there to say there's a probable cause of criminal action.  We had witnesses who stated that Mr. Brown was surrendering (suggesting, at a minimum, negligent homicide), and combined with a clean toxicology report and the fact that Mr. Brown suffered multiple gunshot wounds, that should have been more than enough to say there was probable cause for an indictment.  It's entirely possible, I'd even say probable, that a trial would have resulted in a not guilty verdict given the high burden of proof there, but again, the grand jury's job is only to determine probable cause, and there was plenty of it here.

The New York decision is even more baffling, considering it was caught on tape and minimal facts are in dispute.  I do not doubt the officer's account that he did not mean to harm Mr. Garner, but intent only matters for murder charges, not manslaughter or other charges that could be brought.  Mr. Garner is clearly audible that he can't breathe, and chokeholds have actually been banned within the NYPD since the 1990's.  Again, those facts alone, especially coupled with the medical examiner's finding that the cause of death was homicide, amount to fairly clear probable cause.

So what went wrong?

Well, as you can imagine, the vast, overwhelming number of cases that go to grand juries return indictments.  I've once heard the number 99% thrown around, but I don't have evidence to back that up.  However, in several studies, grand juries have been found to almost never return indictments against police officers who kill in the line of duty.  Interestingly, this seems to be little affected by race, of the officer or the victim - the grand juries actually seem more blinded by police blue than any other color.  The racial aspect seems to exist more in the fact that police officers are substantially more likely to kill black men than anyone else in the first place, rather than in how the grand jury handles it.

So, why is the indictment rate so low for police officers?  Well, frankly, people respect police officers, are inclined to believe them, and prosecutors who work with the local police every day of the week are very disinterested in prosecuting them.  This is why special prosecutors are usually needed, but almost never actually brought in.

Consider Ferguson for a moment.  Remember what I said about there being conflicting testimony?  Why did the grand jury even hear about it?  Again, prosecutors control what the grand juries hear, the only right an accused has is to present his own statement.  In Ferguson, however, the prosecutor presented the grand jury with the entire case, including statements from witnesses who agreed with the police officer's account.  While the grand jury, as I explained above, should have dismissed those witnesses anyways, the prosecutor should never have presented him - I would even say that it seems like dereliction of duty that he did.  It is hard to read anything into that choice other than that the prosecutor was intentionally trying to make the grand jury uncomfortable with the idea of indicting the officer.

Prosecutors who tank cases and citizens who trust the police make a dangerous combination for a grand jury.  If you want my opinion of why grand juries tend not to indict police officers - that combination is it.

What happens next?

So, what's next in these cases?  Well, what many people don't realize is that the decision not to indict is not like an acquittal.  Because the accused never had a chance of actually being sentenced to jail time from a grand jury hearing, "jeopardy" never "attached."  I could write entire blog posts about what that means, but the short answer is that there is no double jeopardy implication.  If a prosecutor wanted to, or a governor wanted to appoint a special prosecutor, a new grand jury could be convened.  Further, both officers are being investigated for committing possible civil rights violations.  That's important because civil rights violations are federal crimes, and federal prosecutors don't have relationships with local police like state prosecutors do.  As I recall, in fact, most of the time when police officers have actually been convicted for killing on the job, it's been in federal court (for example, many people don't remember that after the four officers accused of beating Rodney King were acquitted, touching off the Los Angeles Riots, three of them were indicted in federal court, with two of them ultimately being convicted and sent to jail).

In addition to possible federal charges or even a new state grand jury, the families of both Brown and Wilson have the right to file civil lawsuits against the officers and police forces for "wrongful death."  Such civil cases have had some success in the past, and I would not be surprised if either family went forward with such an approach.

Conclusion

The events in Ferguson and New York can be very confusing to people who don't know the law.  Some don't understand what a grand jury is, others don't understand how people could say the grand jury got it wrong.  In this post, I hope I've at least touched on an explanation for those of you who may be confused.