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Grand Jury Basics

Tuesday, December 2, 2014

Good morning:

I need to clear up confusion that was evident in the comments to my article yesterday, St.Louis police need to STFU and stop killing people, because it interfered with intelligent discussion.

1) The extreme pro-police bias of the prosecution that is evident throughout the grand jury witness transcripts, including an unconstitutional legal definition of self-defense submitted by the prosecution regarding when a police officer may use deadly force, so corrupted the grand jury process as to render its decision a nullity. This conclusion cannot be legitimately questioned given that Wilson voluntarily testified for four hours without challenge by the prosecution. That. Never. Happens.

2) The terms ‘guilty,’ ‘not guilty’ and ‘presumption of innocence’ are legal terms of art that have specific definitions. These terms do not apply to a person who has not been charged with a crime.

3) The ‘presumption of innocence’ does not mean innocence in fact. The presumption only applies to defendants who have been charged with a crime when a fact finder, be it a judge or jury, deliberates on reaching a verdict. If it were otherwise, no defendant would ever be denied bail and there would be no conditions of release.

4) The grand jury was not required or instructed to presume Wilson was innocent and it did not find him innocent. It found that the evidence presented was insufficient to establish probable cause to believe Wilson committed a crime when he killed Michael Brown. This decision is not an adjudication and does not prevent another grand jury from considering the evidence and returning an indictment.

5) No rule requires anyone to presume Darren Wilson is innocent. He is neither ‘guilty’ nor ‘not guilty’ because those terms are adjudications and he has not been charged with a crime. Anyone who says he is innocent because he must be presumed innocent is mistaken.

6) Jeff Roorda of the St.Louis Police Officers’s Association lied yesterday when he said Darren Wilson had been exonerated by the grand jury. This is not surprising since he is a former police officer who was fired for lying in his police reports and he must know that grand juries do not exonerate people.

7) ‘Guilty’ is a legal term of art that means a person has been found legally responsible for committing a specific crime, either because he waived his right to a trial and pled guilty to that crime or a judge or jury found him guilty after considering all of the evidence introduced by both parties and deciding that the prosecution overcame the presumption of innocence by proof beyond a reasonable doubt that the defendant committed the crime charged.

8) Just as a finding of ‘not guilty’ does not necessarily mean that a defendant did not commit the crime charged, a finding of ‘guilty’ does not necessarily mean that a defendant committed the crime charged. This is why lawyers use the term ‘actual innocence’ to refer to a person who in fact did not commit the crime charged.

9) The legal standard of proof beyond a reasonable doubt does not mean proof beyond all doubt. This legal standard was developed long before we had a litmus test of guilt, such as DNA testing. It reflects the practical impossibility of proving guilt beyond all doubt.

10) Finally, grand jury proceedings are limited to determining whether probable cause exists. We do not have trials by grand jury because they meet in secret, a defendant has no right to be present although he may testify without his lawyer present, and there is no right to confront witnesses through cross examination. We have public trials because of the Sixth Amendment right to a public trial and the public’s First Amendment right to know what is happening.

I hope this grand jury primer promotes and facilitates intelligent discussion of this tragic case.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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