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No Free Rein For Misinforming And Confusing Jurors

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By Robert Weiner, Hannah Coombs and Daniel Wallace
Originally Published in St. Louis Post Dispatch
February 4, 2015

After the Post-Dispatch and a few other papers last month covered a Ferguson grand juror's initiating a lawsuit against the prosecutor, all media have been stone silent since then on the suit. On January 25, the National Press Club held a forum, "Coverage of Race in America," regarding media, race and justice, from Ferguson to Staten Island. Post-Dispatch Editor Gilbert Bailon was a key panelist and took justifiable pride in the paper's coverage of Ferguson and the new lawsuit. There would be enormous gaps in information without the Post-Dispatch's leadership.

This lawsuit, Grand Juror Doe vs. Robert McCulloch in his official capacity as a Prosecuting Attorney, deserves updates and editorial endorsements. It is a unique way to punish prosecutors for potential fraud against the court through misinformation, confusion and lack of timeliness as the grand juror points out in the complaint, which is supported and litigated by the ACLU. Specifically, Doe filed that "the presentation was made in a muddled and untimely manner." Fraud against the court is a prosecutable offense.

This is the charge that McCulloch and his team, including assistant prosecutor Kathy Alizadeh, could face. Alizadeh handed the grand jury a 1979 Missouri law that claimed it is legal to shoot a fleeing suspect -- and did not tell them that the Supreme Court overturned the law 30 years ago, in 1985. Two weeks later, she gave the grand jury a document that reflected the current state of the law. But she told the jurors to fold in half the first document in order to remind themselves not to "necessarily rely on that because there is a portion of that that doesn't comply with the law." Confused, a juror asked if U.S. Supreme Court rulings overturn Missouri law. Instead of answering a simple "Yes," another assistant district attorney spoke up and responded, "We don't want to get into a law class."

As a result, the grand jury operated on an unclear understanding of the relevant law for whether Darren Wilson was legally justified to shoot Michael Brown as he ran away (regardless of the confusion of whether he was surrendering or not).

In addition, McCulloch and his team never confronted Officer Wilson sufficiently about why and how Michael Brown was shot the second time from 35 feet away. Since the officer claimed he was aware that Brown was unarmed, why didn't the policeman shoot the final shots at the legs to disable rather than the head to kill?

The ACLU, representing juror Doe in the case, asks that the judge lift restrictions on Doe's First-Amendment right to discuss the prosecution's actions. The juror further argues that prosecutor McCulloch discussed the nonindictment in a way that falsely made the grand jury's findings appear unanimous. However, only four of the 12 were sufficient to block the indictment and as many as eight, a majority, may have voted to indict.

Prosecutors could also be held accountable in Staten Island, where the videographer who shot the footage of the illegal death-inducing choke hold and the "I can't breathe" statements was dismissed after just 10 minutes of testimony, with no penetrating questions regarding what he saw, the angles, the time duration, the results, and the like.

There are a lot of proposals to improve future prosecutions' objectivity, including police body cameras, training and community policing. These are all excellent and necessary, but prosecutors are the final bulwark when injustice is actually committed. The knowledge that they, too, are subject to prosecution and criminal cases will go a long way toward equalizing race and justice in America.

The Doe case is an excellent first step, but is not as far as the jurors could and should go, not only for the right to speak but to hold the prosecution accountable. Tony Rothert, legal director of the Missouri ACLU, said his group is also supporting suits that would directly confront McCulloch and his team for fraud and removing McCulloch from office. Rothert says he "wants to get the conversation going." These suits are also underreported in the media.

The grand juror's courage in initiating the Doe v. McCulloch case could be a national model, and it deserves public support as well as ongoing media coverage. Prosecutor McCulloch's response to the case was due Monday. He asked for two more weeks. The court is mandating that he respond. The train of justice may be coming.

Robert Weiner is a former spokesman in the Clinton White House and was spokesman for Congressional Black Caucus senior members John Conyers and Charles Rangel. Hannah Coombs and Daniel Wallace are policy analysts at Robert Weiner Associates and Solutions for Change.

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