News coverage of the Michael Brown grand jury has proceeded like the prosecution in the case. It has been “look at this,” “now look at that,” with no rhyme or reason to the presentation. Big mistakes were made but in context, a pattern emerges that does not appear to be the result of chance or incompetence.
That pattern includes things that missing that are expected in any grand jury proceeding.
For example, did you know the grand jurors were never told what laws might apply to this case until the very end? And even there we don’t know what was said to the jurors.
4 GRAND JUROR: So you are going to give us 5 those guidelines for us? 6 MS. WHIRLEY: Right . 7 MS. ALIZADEH: We're not going to give you 8 the facts and say if he did this and then this, if 9 you believe this, then this. But we're going to 10 give you what the law says when a law officer can 11 use force to affect an arrest and when that force 12 can be deadly. And then also when a person can use 13 force to defend themselves and when that force can 14 be deadly. 15 There is all kind of things about whether 16 or not the person is an initial aggressor, you know. 17 And under the law, a law enforcement officer can be 18 an initial aggressor, unless his arrest is unlawful.
This exchange happens in Volume 24, page 108, lines 4-18. Problem is, we don’t know what “laws” were actually given to the grand jury or in what form. More missing “evidence.”
Notice that the prosecutors deviated from the normal pattern of grand jury proceedings.
When the Grand Jury meets, the district attorney or an assistant district attorney designated by the district attorney will either read or explain the proposed Indictment (sometimes referred to as a Bill of Indictment) to the Grand Jury and will acquaint them with the witnesses who will testify. This is done to allow the Grand Jurors to familiarize themselves with the parties involved in case one or more members are disqualified to serve (see p. 21 and 22). (Grand Jury Handbook, page 25) (To the same effect but in federal grand juries, Antitrust Division Grand Jury Practice Manual page IV-2)
Outlining the law to a grand jury sets a context in which they place evidence and separate the important from the trivial or even irrelevant. You can scour all twenty-four volumes but in particular volume one and you will find no such assistance for the grand jury in this case.
I will outline the laws that should have been given to the grand jury at the outset of this investigation and then the consequences of not having those laws all along will be more evident.
Please shout if I fail to give specific references and/or hyperlinks to resources that I cite. I am less interested in your hearing my summary than I am in providing you with the ability to see the primary materials for yourself. (Another characteristic of a well authored topic map.)
There are two possible charges that could have been given to the grand jury, well, a properly assisted grand jury in this case, first and second degree murder. Let’s look at the laws in both cases.
First Degree Murder
First degree murder, penalty–person under sixteen years of age not to receive death penalty.
565.020. 1. A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.
…
The elements of first degree murder are:
- person commits
- knowingly causes
- death of another person
- after deliberation on the matter
You may have heard the term “premeditated” murder before. Essentially someone who plans to murder another person and then carries it out. There’s no specific time limit required for deliberation.
As a tactical matter, a prosecutor would not give the grand jury a first degree murder indictment in this case because there is no evidence of deliberation. The only reason for giving it in this case is to get the grand jury accustomed to the idea of not returning a true bill on any charge.
For the Michael Brown grand jury, absent some evidence that Darren Wilson knew and had some plan to murder Michael Brown, I would leave this one out.
Second Degree Murder
Until December 31, 2016–Second degree murder, penalty.
565.021. 1. A person commits the crime of murder in the second degree if he:
(1) Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person; or
(omitted language on murder in the course of commission of a felony as irrelevant)
…
The elements of second degree murder are:
- person commits
- knowingly causes
- death of another person
- or with purpose of serious injury
- causes the death of another person
This illustrates the reason for instructing the grand jury on the law before they start hearing evidence. It enables them to sort out useful from non-useful testimony and evidence.
For example, do you see anything in the elements of second degree murder that allows killing of another person if the other person has been smoking marijuana? Or does it permit killing of another person for jaywalking? Or if a jaywalker runs away? What if you “tussle” with a police officer? Fair game? No, it doesn’t say any of those things.
Think about reading the grand jury transcripts and marking out witnesses and evidence that isn’t relevant to the elements:
- person commits
- knowingly causes
- death of another person
- or with purpose of serious injury
- causes the death of another person
Not today but I will be annotating that list with points in the transcript that provide “probably cause” for each of those points.
You will have noticed from the quoted portion of the transcript that defense counsel ALIZADEH gives the jury instructions on use of force in self-defense and by a police officer.
That’s not a typo, I really mean defense counsel ALIZADEH. Why? I have appended the full statute provisions at the end of this post but in part:
Self-defense
Use of force in defense of persons provides in part:
5. The defendant shall have the burden of injecting the issue of justification under this section.
Who raised it? Defense counsel ALIZADEH.
Force by a police officer
Until December 31, 2016–Law enforcement officer’s use of force in making an arrest provides in part:
4. The defendant shall have the burden of injecting the issue of justification under this section.
Who raised it? Defense counsel ALIZADEH.
Voluntary Manslaughter
I suspect the jury was also instructed on voluntary manslaughter, which was also inappropriate because like the other statutes, Until December 31, 2016–Voluntary manslaughter, penalty–under influence of sudden passion, defendant’s burden to inject provides that:
2. The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of subsection 1 of this section.
“Sudden passion from adequate cause” under Missouri law is a defense to second degree murder. What that means is that if you are charged with second degree murder, the trial jury (not the grand jury) can find you guilty of voluntary manslaughter as a responsive verdict. See: Until December 31, 2016–Lesser degree offenses of first and second degree murder–instruction on lesser offenses, when. (And for your convenience, below.)
Again, must be raised by and probably was raised by Defense counsel ALIZADEH.
Summary:
The only facts that the grand jury had to find probable cause for in its hearings and deliberations were:
- person commits (Darren Wilson)
- knowingly causes (not accidental, on purpose)
- death of another person (Michael Brown’s death)
- or with purpose of serious injury (multiple wounds)
- causes the death of another person (Michael Brown’s death)
That’s it in a nutshell.
The trial jury or judge alone reaches decisions on self-defense, force by a police officer, “sudden passion from adequate cause,” and other issues. Not a grand jury.
Knowing the law, review the transcripts to say whether there was probable cause or not.
PS: Sorry, almost forgot:
The best-known definition of probable cause is “a reasonable belief that a person has committed a crime”
From Probable Cause at Princeton University.
If you think shooting an unarmed person eight times leads to a reasonable belief a crime has been committed, then you would return a true bill for second degree murder.
Supplemental Missouri statutes
Use of force in defense of persons (563.031), Law enforcement officer’s use of force in making an arrest (563.046), Voluntary manslaughter (565.023), and Lesser degree offenses of first and second degree murder (565.025), below.
Use of force in defense of persons.
563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:
(a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
(b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or
(c) The aggressor is justified under some other provision of this chapter or other provision of law;
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;
(3) The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.
2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;
(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or
(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual claiming a justification of using protective force under this section.
3. A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining. A person does not have a duty to retreat from private property that is owned or leased by such individual.
4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
5. The defendant shall have the burden of injecting the issue of justification under this section. If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.
Until December 31, 2016–Law enforcement officer’s use of force in making an arrest.
563.046. 1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.
2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.
3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only
(1) When such is authorized under other sections of this chapter; or
(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested
(a) Has committed or attempted to commit a felony; or
(b) Is attempting to escape by use of a deadly weapon; or
(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.
4. The defendant shall have the burden of injecting the issue of justification under this section.
565.023. 1. A person commits the crime of voluntary manslaughter if he:
(1) Causes the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section 565.021, except that he caused the death under the influence of sudden passion arising from adequate cause; or
(2) Knowingly assists another in the commission of self-murder.
2. The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of subsection 1 of this section.
565.025. 1. With the exceptions provided in subsection 3 of this section
and subsection 3 of section 565.021, section 556.046 shall be used for the
purpose of consideration of lesser offenses by the trier in all homicide cases.2. The following lists shall comprise, in the order listed, the lesser
degree offenses:(1) The lesser degree offenses of murder in the first degree are:
(a) Murder in the second degree under subdivisions (1) and (2) of
subsection 1 of section 565.021;(b) Voluntary manslaughter under subdivision (1) of subsection 1 of
section 565.023; and(c) Involuntary manslaughter under subdivision (1) of subsection 1 of
section 565.024;(2) The lesser degree offenses of murder in the second degree are:
(a) Voluntary manslaughter under subdivision (1) of subsection 1 of
section 565.023; and(b) Involuntary manslaughter under subdivision (1) of subsection 1 of
section 565.024.3. No instruction on a lesser included offense shall be submitted unless
requested by one of the parties or the court.