NOTE: The headline to this article does not appear to be exactly accurate. Perhaps it should read something like “Justice Scalia’s earlier decisions Explain What Was Wrong With the Ferguson Grand Jury”. I don’t believe Scalia actually commented on the Ferguson case. That being said, this article explains how the Grand Jury process was greatly deviated from in the Ferguson case, which probably explains why there was not an indictment.
POSTED ON NOVEMBER 26, 2014 AT 10:13 AM UPDATED: NOVEMBER 26, 2014 AT 11:57 AM
On Monday, Prosecutor Bob McCulloch announced that a grand jury had decided not to indict Darren Wilson, the officer who killed Michael Brown. But that decision was the result of a process that turned the purpose of a grand jury on its head.
Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.
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.
This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.
In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson.
Compare Justice Scalia’s description of the role of the grand jury to what the prosecutors told the Ferguson grand jury before they started their deliberations:
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.
As Justice Scalia explained the evidence to support these “complete defenses,” including Wilson’s testimony, was only included by McCulloch by ignoring how grand juries historically work.
There were several eyewitness accounts that strongly suggested Wilson did not act in self-defense. McCulloch could have, and his critics say should have, presented that evidence to the grand jury and likely returned an indictment in days, not months. It’s a low bar, which is why virtually all grand juries return indictments.
But McCulloch chose a different path.
NOW Condemns Grand Jury’s Failure to Indict Police Officer Darren Wilson, Calls for Action to End Racial Injustice Against Women and Men of Color | National Organization for Women
Statement of NOW President Terry O’Neill
Washington, D.C. – The criminal justice system has failed in Ferguson, Missouri. NOW condemns the grand jury’s refusal to indict Darren Wilson, the white officer who shot Michael Brown dead after stopping him for walking in the street instead of on the sidewalk. Michael Brown, an African American 19-year-old, was unarmed.
NOW deplores the fact that our justice system has utterly failed Michael Brown’s family and community. Even worse is the spectacle of the authorities’ militarized response to peaceful demonstrations, a response that is all too similar to the inhumane and racist tactics used in the Deep South against civil rights protesters in the 50s and 60s.
The crisis in Ferguson reveals a racial divide in the U.S. that far too many would rather ignore. We cannot ignore it any more.
We call on the authorities to halt all use of military weaponry against demonstrators and to respect their constitutional right of peaceful assembly and protest.
Ferguson is only one of a horrific number of incidents that add up to a pandemic of overpolicing and underprotection in communities of color throughout the United States. In addition to Michael Brown, we also mourn the loss of Eric Garner, Trayvon Martin and Jordan Davis. Additionally, NOW calls for recognition that women of color are targets too — from Yvette Smith in Texas to Eleanor Bumpurs in Brooklyn to Tarika Wilson in Lima, Ohio.
Federal and state authorities must take action to end the nationwide crisis of police brutality in communities of color. To have any hope of being effective, that action must include women as well as men, and girls as well as boys.
NOW salutes the peaceful protesters in Ferguson and beyond, and stands in solidarity with their demand for justice.
This past Tuesday, August 26 was Women’s Equality Day. Congress (and more particularly, Bella Abzug) enacted Equality Day in 1971 to commemorate the anniversary of the 19th Amendment to the Constitution. The 19th Amendment passed in 1920. Oregonian women had already obtained the right to vote in 1912 (still 136 years after the Declaration of Independence). Now, 43 years after the first Equality Day, Oregonians have the opportunity to pass Ballot Measure 89 at the coming November election. Measure 89, the Equal Rights Amendment, will amend the Oregon Constitution to provide that the State and its political subdivisions “shall not deny or abridge equality of rights on account of sex.” Celebrate equality by registering to vote, encouraging others to register and exercising your vote in support of equality. It is the least we can do for our ancestors and our descendants. There is no shortage of new fights, so we should get the older inventory of justice issues off our plates!
People have been fighting and dying in this country for a long time for the right to vote, even while generations of women and people of color had no such right, or the exercise of the right was so severely burdened as to be meaningless. Yet as a nation we have a humiliating rate of voter turnoutand a recent Princeton study asserts that the United States is functionally no longer a democracy but an oligarchy. The power of voting may be eroding in this country, but we cannot fight that trend by voting less, only by voting more.
Whenever I think about women’s right to vote, I think of my grandmother. She was born in rural Virginia in 1914 and died there in 1992. Had she been born in Oregon, she would have been born with the fundamental right of a citizen to vote for her representatives. Where she was born, she was functionally not a citizen at her birth. She had the right by the time she was old enough to vote and exercised it throughout her life. It took 144 years from the Declaration of Independence for half the population to be included in the democracy. Today, there are certainly living Oregonian women who are older than their right to vote in national elections (94 years) and probably a few who are older than their right to vote even in Oregon (102 years). When my grandmother died, she did not have the inherent right to be free of discrimination because of her sex and today, women of the United States do not.
Equality Day, enacted during the push to enact a National ERA, is almost exactly the same age as I am, within a matter of days. The original campaign to enact a Federal ERA, began in 1923, in the wake of the passing of the 19th Amendment but nearly 50 years passed before the ERA passed the Senate and the House in 1972. An insufficient number of states have ratified it for it to be enacted. (Oregon ratified it in 1973). Therefore, while I was born with the right to vote, I was not born with the right to be protected from discrimination on the basis of my sex, nor is anyone else, of any gender. Moreover the fight has been going on all my life. Even the constitutional right to be protected from discrimination isn’t always enough.
In the wake of the murder of Michael Brown in Ferguson Missouri, activists began promoting voter registration in that community. Michael Brown, as a black man, was barely old enough to vote, but he had that right and he was constitutionally protected from discrimination as a black man. But he lived in a majority black community, governed by a majority white local government, in which voter turnout was 12%, leading to comments that a 12% voter turnout is “an insult to your children”.
I’ve actually met people who say with pride, “I don’t vote. Those parties are all the same and it doesn’t make a difference”. That is an insult to our collective children. It’s also an insult to our troops, our veterans, and every civil rights advocate and suffragette who marched, was beaten, hosed down, attacked by dogs, jailed or died for the right to vote. And it does have consequences.
Every Supreme Court decision in the last nine years has been decided by a court that included two judges appointed by George W. Bush. (e.g., Citizens United, which allowed for unlimited corporate money in elections, Hobby Lobby, which allowed employers’ alleged religious convictions to define the scope of women’s healthcare). The voter turnout in the 2000 election was 55% and in Florida in particular it was 57%. Without even getting into the effect of Reagan and George H.W. Bush’s effect on the Bush v. Gore decision, voting matters. It has immediate effects, it has ripple effects. But it is not the only bottom line. Inequality is more complicated than that, which is why the Voting Rights Act was still necessary after the 14th and the 15th Amendment, and why the 14th Amendment contains an Equal Protection Clause.
So let’s hear it for cause and effect! Vote for candidates who support equality. Vote for Measure 89. Vote as though your life depended on it. Because it does.