On Just Whose Ox Gets Gored

Give Paul Cassell credit.  He said one thing that's right.

The evidence should determine the outcome in this case — not threats of violence.

Beyond that, it's all hooey.

The issue is Darren Wilson in Ferguson and whether he'll be indicted for murder.  (Spoiler alert: Nope.)  And it's Cassell's latest screed on the subject.

Here's how it works in the hypothetical Darren Wilson grand jury. If the prosecutor wanted to charge Wilson with murder, he would send in one, maybe two witnesses.  The grand jurors would hear three pieces of evidence:

1. Michael Brown was unarmed.
2. Darren Wilson shot Michael Brown.
3. Michael Brown died from the gunshots.

The prosecutor would explain to the grand jurors that the elements of murder were satisfied.  The grand jury would then charge Darren Wilson with murder.  It would be done in an hour.  Any defense?  That's what trials are for.

Here's how it works in the hypothetical actual grand jury.  The prosecutor spends weeks bringing in witnesses who explain that 

Sure Michael Brown was unarmed but you have to understand the circumstances from Darren Wilson's point of view and here are the things that would constitute his defense and remember that he was a cop just trying to do the best he possibly could and Michael Brown was a street punk who probably deserved it and who's going to keep you safe at night if the cops are afraid to anything to protect themselves and you lest they be charged with murder and really the son of a bitch deserved it and anyhow really cops don't get convicted so why bother.

Now, says the prosecutor, here are the elements of murder which I suppose if you folks went out on a limb you might find but remember all that evidence of innocence and the defense that Wilson would present and you know that he won't be convicted anyhow and why tarnish a good man's reputation but if you feel that he's guilty beyond a reasonable doubt I suppose maybe, but really, we don't think we can prove it.

Here's Cassell explaining the glorious things that would will happen if when the grand jury returns without an indictment.

If no charges are filed, the country would have an opportunity for an important civics lesson on the presumption of innocence, the need to avoid a rush to judgment, and possibly (depending on the evidence) the fact that a police officer did not use excessive force but was simply defending himself in the course of trying apprehend a violent robber — i.e., Brown.

None of that, none of it, is what grand juries do in the ordinary case.  Grand juries hear a summary of evidence of guilt and return indictments.  They determine not whether there's a defense, not whether the presumption of innocence has been overcome.  They determine whether summary of evidence of guilt is sufficient to say, gee, this guy oughta be tried.

The rest, that's all for trials.  It's from the trial, where the evidence of guilt is presented to a jury of 12 in a courtroom operating under the rules of evidence, where the evidence is challenged by cross-examination, where the defense gets to put on its witnesses (who the prosecutor can cross-examine), it's from there that the public can learn those important civics lessons.

Cassell knows that, of course.  And he's perfectly happy with the grand jury hearing a summary of evidence and then indicting in the ordinary case where it's Michael Brown being charged with involuntary manslaughter for causing his own death by stealing the bullets that were being flung at him by an officer's gun.  But Darren Wilson?

Law of Rule.