Getting the Facts Right About the Ferguson Grand Jury Decision

The grand jury decision not to indict Darren Wilson for the shooting of Michael Brown has ignited a firestorm of commentary and disagreement. Debate is to be expected in a large and diverse society such as ours. But as an attorney and a law professor, I am particularly troubled to see so many people relying on incorrect facts to support their position.

Here are several facts a lot of people are getting wrong about the Darren Wilson grand jury proceedings and outcome:

Myth: The grand jury declared Darren Wilson innocent, or, relatedly, the grand jury "acquitted" Darren Wilson.

Fact: Grand juries don't decide whether someone is innocent or guilty. Nor do they "acquit" people, as do juries in criminal trials. Grand juries simply decide whether there is probable cause to indict someone for a crime.

Myth: The grand jury found that Darren Wilson's shooting of Mike Brown was justified.

Fact: Aside from determining whether there is probable cause to indict someone for a crime, grand juries don't make any factual determinations. Saying that there is no probable cause to indict someone -- what the jury said here -- is different from saying that the shooting was justified.

Myth: The grand jury found Darren Wilson not guilty beyond a reasonable doubt.

Fact: In a criminal trial, a prosecutor needs to prove that a defendant is guilty beyond a reasonable doubt in order to convict him. But the reasonable doubt standard has no bearing on grand jury proceedings. Rather, as I have mentioned, the standard that grand juries use is probable cause. Probable cause is a low standard. I have heard some judges describe probable cause as about 10% certainty, while other commentators hesitate to quantify it but agree that it is quite low. And Sol Wachter's now much-quoted statement that "by and large" prosecutors could influence juries to "indict a ham sandwich" offers a more colloquial understanding of probable cause.

Myth: The grand jury was unanimous.

Fact: Robert McCullough, the St. Louis County prosecutor, explicitly stated that he would not disclose whether the grand jury was unanimous (at about 25:40 in the video). Under Missouri State Code § 540.260, nine of the twelve jurors need to agree in order to indict someone for a crime. Since there was no indictment, all we know is that there were not nine votes to indict Darren Wilson on any given charge. Indeed, there could have been eight votes to indict him on one or more of the charges. Or the decision not to indict could have been unanimous. But we don't know. And given that Missouri State Code § 540.310 prohibits grand jurors from disclosing any individual juror's vote, we likely never will.

Myth: This was a normal grand jury proceeding.

Fact: This grand jury proceeding was unusual in a number of ways. Others have already discussed the abnormalities in considerable detail, but they include the decision to present the jury with all the evidence, as well as the decision to present that evidence without recommending whether the grand jury indict on particular charges. In a typical grand jury proceeding, the prosecutor would present enough evidence to establish probable cause of the crimes the grand jury was considering, and would then recommend to the jurors that they indict on particular charges.

Myth: It's normal for a defendant to testify in front of a grand jury.

Fact: It's actually rare for a defendant to testify in front of a grand jury. It's not unheard of, and the practice varies from one jurisdiction to another. But in most instances people who are known targets of a grand jury investigation don't want to risk testifying in front of a jury. Moreover, there is no absolute right for a defendant to testify in front of a jury that is investigating him. So Robert McCullough, the prosecutor, gave Darren Wilson an opportunity that McCullough was not constitutionally or statutorily required to provide.

Myth: Robert McCullough presented the evidence to the jury.

Fact: Two assistant prosecutors, Kathi Alizadeh and Sheila Whirley, presented the evidence to the grand jury. McCullough oversaw the proceedings but was not in the jury room on a daily basis.

Myth: Double jeopardy prevents Darren Wilson from being charged in the future with a crime relating to his shooting of Michael Brown.

Fact: A non-indictment by a grand jury doesn't trigger double jeopardy. Another grand jury could be convened to hear the evidence. Indeed, one criminal law expert has called for precisely that to happen, although so far Governor Jay Nixon has said he will not appoint a special prosecutor to present evidence to a new grand jury. Moreover, Wilson could also be charged with a federal crime under 18 U.S.C. § 242, which makes it a crime for government officers to deprive citizens of constitutional rights. As other commentators have observed, this is relatively unlikely, but it's certainly not precluded by double jeopardy.

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As we discuss and debate the grand jury's decision not to indict Darren Wilson, we'll inevitably have differences of opinion -- some slight; some extreme. But we owe it to one another to ensure that our opinions are founded on a correct understanding of the underlying facts.