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Supreme Court Justice Scalia’s Words Expose The Ferguson Grand Jury as a Legal Farce

These are not issues being fabricated by protesters that are angry over the lack of an indictment. These are serious legal issues being raised by respected legal professionals, scholars, and judges that perceive massive corruption of the legal system in this case.

Ferguson, Mo. – While the blowback from the Ferguson grand jury decision to not indict officer Darren Wilson continues to ripple across the country, many are coming to the realization that the way the prosecution presented its case to the grand jury ran contrary to the way grand juries are supposed to operate.

A recently released statement by the National Bar Association, which is the oldest and largest national association of black attorneys and judges in the U.S., questions how an indictment could not be reached given the evidence presented based on the extremely low threshold of proving probable cause.

In addition, numerous legal experts have come forward to criticize the process used in Ferguson by District Attorney Bob McCullough. Many of these experts, after reviewing the evidence put before the grand jury, believe McCullough presented the case in a manner that was intended to not get an indictment of Wilson.

The legal experts reason that this was a corrupt proceeding, is made clear simply by looking at Supreme Court Justice Antonin Scalia’s writing in regard to the role of grand juries in the 1992 Supreme Court case of United States v. Williams, in which he states explicitly:

“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.”

Scalia has not made any direct comments about the situation in Ferguson, but his writing in this case is clearly applicable and speaks directly to the process at hand.

In contrast to the clear function of the grand jury, as put forth by Scalia, McCullough presented every piece of exculpatory evidence he possessed in an effort to get a non-indictment. In addition, McCullough allowed Darren Wilson to testify at length in an attempt to justify his actions, which runs completely contrary to the way Scalia says a grand jury should operate.

The way the evidence was presented by McCullough was a deliberate attempt to not indict Wilson and shows the preferential treatment given to law enforcement. Simply look at the jury instructions given by the prosecutors and you will see the stark contrast to what Scalia says should be done:

“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.”

Do these jury instructions from the DA look like those of someone seeking an indictment or that of a defense attorney attempting to get his client off? It seems clear that there was never an intention by the prosecutors to indict Wilson.

Another legal expert, Jeffery Toobin, an attorney and legal analyst for The New Yorker, goes on record stating that:

“McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion.”

These are not issues being fabricated by protesters that are angry over the lack of an indictment. These are serious legal issues being raised by respected legal professionals, scholars, and judges that perceive massive corruption of the legal system in this case.

Whether Wilson was guilty or not was not even the issue at this stage in the case, the only issue was whether there was probable cause to indict, which there is little question that there was. The only job the prosecutor had at this point in the case was to get an indictment, not to try the case in a grand jury proceeding. Sadly, from all available evidence it seems that McCullough accomplished exactly what he set out to do.

These proceeding show a system so corrupt that certain individuals are allowed special privileges and are seemingly above the law, while prosecutors can wield their power to assist in usurping justice and have free reign to do so with no consequences. How can anyone trust a legal system that selectively cherry picks who will face justice?

If there is no legal standard that holds true for every citizen regardless of profession, skin color, culture or religion, but rather is selectively applied, then the rule of law means nothing.

Justice for some means justice for none!


Jay Syrmopoulos is an investigative journalist, freethinker, researcher, and ardent opponent of authoritarianism. He is currently a graduate student at University of Denver pursuing a masters in Global Affairs. Jay’s work has previously been published on BenSwann.com and WeAreChange.org. You can follow him on Twitter @sirmetropolis, on Facebook at Sir Metropolis and now on tsu.

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