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Justice Scalia explains why the Ferguson grand jury was completely wrong

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The high court’s most reactionary judge’s previous ruling flies in the face of Ferguson’s prosecutor’s actions.

This story first appeared at AlterNet.

After a Missouri grand jury declined to indict Darren Wilson for killing Michael Brown this week, it became clear immediately that Ferguson prosecutor Bob McCulloch presented the case in a way that was bound to fail. Many critics say this appears to have been entirely intentional on the prosecutor’s part.

What those critics (and McCulloch) might not know is that the Supreme Court’s conservative firebrand, Antonin Scalia, explicitly laid out the role of grand juries in the 1992 Supreme Court case of United States v. Williams, and it is in stark contrast with what McCulloch did. Scalia wrote:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

The passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.

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McCulloch allowed Wilson to testify for hours and made sure the grand jury was aware of every possible piece of evidence that could exculpate the cop. In his rambling press conference Monday night, McCulloch explained that the refusal to indict resulted from the combination of contradictory eyewitness testimony and other exculpatory evidence. But it was immediately obvious to legal experts that the way the prosecutor presented the evidence virtually guaranteed that there would be no indictment, and therefore no trial. As the cliche goes, a prosecutor can get a grand jury to indict a ham sandwich. But, it should be added, the prosecutor has to want the ham sandwich to be indicted.

In contrast with Scalia, here are McCulloch’s instructions to the grand jury before they began deliberating:

And you 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. 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.

Sounds a bit like a defense lawyer, no? It was only by McCulloch’s inclusion of Wilson’s testimony, that evidence to support these “complete defenses,” was heard. Either McCulloch is completely ignorant of the history of how grand juries work as codified by Scalia, or something more sinister.

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Scalia has not commented directly on the Ferguson ruling.

 

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