Tuesday, November 25, 2014

Close Your Eyes and Pretend Really Hard

Scott Greenfield makes a point, with some regularity, that we shouldn't be in the business of making people stupider.

H.L. Mencken said that "Nobody ever went broke underestimating the intelligence of the American public.

It's not actually P.T. Barnum who said, "There's a sucker born every minute."

And then there's Paul Cassell.  Former federal judge, law professor, scold, and holder of one of the soapboxes at the Volokh Conspiracy.  For several days now, he's been offering a string of misleading claims about the grand jury process and transparency and how when (he always said if, but he meant when) the grand jury did not indict Darren Wilson for the killing of Michael Brown it would be because they did their job properly and concluded that he wasn't actually guilty.  Greenfield's taken him to task for his lies misrepresentation. (Here, for instance.)  So have I (here).  So, I'm sure, have others, but I've been busy and fallen down some on my reading.

Now, of course, we know that the grand jury did what we knew it would do.  No, they said, we're not going to indict Wilson.  And Cassell is back to assure us that they did their job properly and that there's absolutely nothing out of the ordinary that went on.  Specifically, he says this:
A day before the grand jury’s decision was announced, Michael Brown’s family attorney raised the objection that the grand jury process was unfair because it was deviation from the normal process. “When you think about it, if this prosecutor is saying we’re just going to be fair, we’re not going to recommend any charges, that’s different from anything he’s done in his past 28 years with grand juries,” attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation — leaving the issue up to the grand jurors. But it is hard to understand how this had any ultimate bearing on the outcome. Of course, if McCulloch’s recommendation was against filing charges, then he would never have gone to the grand jury in a normal case. And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point.
Cassell makes the following points.

  1. Benjamin Crump says that the prosecutor's behavior in this case was unusual because he didn't recommend any charges.
  2. That's not true. 
  3. The only thing unusual is that the prosecutor didn't recommend any charges.

Now, I'm not a former federal judge or a law professor.  But I do know the old theory that if you says something loud enough and long enough people will believe it.  Like the White Queen who managed six impossible things before breakfast.

And then, of course, there's the kicker.  That in the normal case where the prosecutor recommends an indictment to the grand jury that indictment will be dismissed.

Greenfield, Mencken, not-Barnum.  Ah, but Paul Cassell. 


  1. Correct me if I'm wrong, but Cassell seems to be saying that, normally, a grand jury will return "No True Bill" on a charge where they do not find probable cause, even if the prosecutor recommends "True Bill." While rare, grand juries actually do refuse to indict from time to time where the evidence is weak. This seems like a pretty uncontroversial statement.

  2. Frankly, the last sentence of that paragraph is so confused that it's hard to say what Cassell's point is. He seems to be saying that if the prosecutor recommends an indictment, that violates some rule and therefore the ensuing indictment must be dismissed. As someone I showed that to this afternoon said (someone who knows Cassell, used to play basketball with him), "That's just nuts." Indeed.

    So sure, maybe what you suggest is right. But while grand juries have refused to indict despite a prosecutor's urging ("rare" doesn't begin to make the point, but I'm sure it's happened at least once within the last 50 years), that reading doesn't strike me as terribly plausible, either.

  3. Out of sincere curiosity, as a defense attorney, do your local prosecutors and court staff make available a list of charges that didn't get indicted? Our office winds up with a handful each year (less than 1%, but then again, one would hope that even with the evidence/credibility problems some cases present that trained professional prosecutors and cops would be able to get over this basic hurdle nearly all the time by the time things got to grand jury). I never asked as a defense attorney, and I'm not aware of any of our local attorneys asking in the time I've been prosecuting.

    1. If they make such a list available, they sure don't advertise the fact. When we learn of a no bill, it's generally either because the case had generated a lot of interest before the presentation (e.g., Darren Wilson) or because a second grand jury did indict and defense counsel wants to look at the minutes (generally prohibited from release even to counsel) to see what, if anything, changed from one presentation to the next.

      The no bill is, of course, very rare. And a significant percentage (but I don't know what the percentage is) of the time it's because the prosecutor didn't actually want the GJ to indict.