Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ARRESTED PROTESTORS PONDER MURDER, PROBABLE CAUSE AND FERGUSON (PART ONE)

Here is hoping you had a great Thanksgiving. Here’s hoping you enjoy “Black Friday”. And here is a story that contains nothing for you to enjoy or be happy about.

As you no doubt have heard from various sources, the grand jury in Ferguson, Mo., has returned its decision regarding the death of the late18-year-old Michael Brown and the allegations against Police Officer Darren Wilson. You have no doubt also heard about the aftermath which included protests in various locations including Ferguson and Boston.

The Boston Criminal Lawyer Blog has certain insights into these events that you may not have realized. Some of them are from knowledge of the criminal justice system. Some are from my experience of so many years as a criminal defense attorney.

Some are directly from my time as an assistant district attorney in Brooklyn, New York.

Sorry, this is not going to be a one-parter. Some issues are simply too complicated and important to our survival as a society to give pithy, simple answers.

“The duty of the grand jury is to separate fact and fiction,” the prosecuting attorney, Robert McCulloch, said in a televised address Monday night. He was announcing that, after weighing the evidence of the shooting, the grand jury decided that Officer Wilson had acted within the limits of the lethal-force law. After doing so, it decided that there was not enough probable cause to indict Officer Wilson.

For anything. Not murder, manslaughter or even simple assault and battery.

In a rare move and in an attempt to allay concerns about bias, McCulloch made public the mountain of evidence presented to the grand jury. This is particularly unusual because grand jury proceedings are supposed to be secret…at least until the decision is made. Then, materials are generally given only to the participants of the criminal case. On the other hand, there was a great deal of fear of an uprising of sorts long before the grand jury’s decision was announced.

In fact, as the days leading up to the announcement went by, I could not help notice what almost seemed to be a goading by the powers that be, already threatening what would happen if there were violent protests. These very public warnings apparently had an effect even on the law-abiding in Ferguson. Apparently, gun sales, as well as barriers around stores, were up in force.

It was almost as if everyone knew what the decision would be long before it was announced by the prosecutor.

By the way, the fact that the decision was announced Monday night does not necessarily mean that the actual final vote took place Monday night. Nor does it mean that the prosecutor and the rest of law enforcement did not know the decision well before Monday night.

Interestingly, the timing of when law enforcement learned of the decision is a bit more difficult to find.

But, I suppose, I digress.

Various witnesses testified before the grand jury and many documents and reports (including three autopsy reports) were introduced into evidence. The presentation took quite a while to complete. Longer perhaps than many trials which is interesting given that there are no judges or defense attorneys in the room.

Only the witnesses, grand jurors and prosecutors. The type of environment which gives rise to the truism that, in general, “a prosecutor could lead a grand jury to indict a ham sandwich.”

Part of what has been revealed is that witness testimony was far from the same. One of the main issues was whether Brown was charging at Wilson, surrendering or running away. Even first-hand eyewitnesses could not all agree.

Attorney Sam’s Take On The Myth Of Probable Cause

“Gee, Sam, you make it sound like the case was full of reasonable doubt.”

Could have been, although we will never know now. However, reasonable doubt is for criminal trials. This proceeding was before the grand jury. The only burden of proof in the grand jury, at least in the states in which I have practiced or witnessed, is that of probable cause.

Probable cause is undeniably a much lesser standard than reasonable doubt…or even that which is the test of fair preponderance of the evidence as in other types of proceedings.

“You mean probable cause like what a police officer needs to arrest?”

Yes, but there is an even more telling example…one which defense attorneys deal with all the time. We have discussed it in these postings in fact. The Clerk Magistrate’s Hearing.

Although it does not always end with the same technical results, the test is generally whether or not the complainant (or law enforcement officer making the allegations) makes out all the elements of the crime to be charged. If the elements are made (regardless of the test of credibility), there is probable cause to issue the criminal complaint.

In the grand jury setting, the test is probable cause to issue the indictment.

It is not the search for guilt or innocence. It is the search to determine if there is enough to bring the accused into the system to find out if guilt can be proven beyond a reasonable doubt.

In other words, the burden is so low that it is a question of whether a court should even burden a suspect to put it to the test.

In the case of young Mr. Brown and Police Officer Wilson, that answer was “No”.

Seems pretty startling, doesn’t it, given that there is no question whatsoever as to whether Officer Wilson shot and killed the late Mr. Brown?

“Well, that is because the defense is self defense, right?”

Sure. But self defense is, as you say, a defense. Generally, a defense is presented at a trial.

“Are all jurisdictions the same regarding that?”

Actually, no. Some have certain procedures which allow the defense to be made in the grand jury. Even assuming that to be the case in Ferguson, however, there seems to have been just as much testimony that contradicting as supporting the theory of self defense.

In cases of “he said” vs. “he said”, it is difficult to imagine how probable cause does not exist.

“So, what are you saying, Sam? That it was another clear cut case of a white racist system deciding that it is not worth thinking about the death of a young black man?”

No, I am not saying that at all. Nor do I believe that. The situation is far more complicated than that. If cooler heads prevailed, then protesters could not be rioting and law enforcement would not be arresting folks who are exercising their Constitutional Rights to peacefully protest.

Those who think that the only colors involved in this matter are black and white are woefully incorrect.

They are forgetting the color blue.

I will follow up on this topic in my next posting this weekend.

In the meantime, have a great, safe and law-abiding weekend!

For the original story upon which this blog is based, please go to
http://www.npr.org/blogs/thetwo-way/2014/11/25/366507379/ferguson-docs-how-the-grand-jury-reached-a-decision and http://www.cnn.com/2014/11/10/us/ferguson-michael-brown-shooting/

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