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COLUMN: A Prosecutor’s Dance

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The following is a column from Kathy Nolan Deschenes. To submit your own column, e-mail the editor at [email protected]

I stayed up late Monday night when I heard that the grand jury decision would be announced in Ferguson. Since I was very young I’ve been interested in the law. In fact, when my grandmother asked me and my cousins, all standing around her at a collective age of 6, what we wanted to be when we grew up, she was surprised at my answer. There were the expected “nurse”, “teacher”, “cowboy” responses from my cousins. But I said, “lawyer.”

Kathy Nolan Deschenes (courtesy photo)
Kathy Nolan Deschenes (courtesy photo)

When I was in my twenties, I decided to pursue a career in law. Since I wasn’t sure if I was really going to like it or be good at it, I started with a smaller step. I enrolled in Bentley College for what was then the only bar-certified paralegal certification program in the state.

I not only did well at it, I loved it.

One of the courses I took was Criminal Law. Not many students in that program took the course since there really was very little demand for criminal law paralegals. But I was always fascinated with this area of law since I was young (thank you, Raymond Burr.)

What I learned in that class was more valuable to me than any other college course I’ve taken. I finally understood the criminal trial process. I no longer read the newspaper with questions about the difference between civil and criminal litigation, evidence gathering and discovery, and murder vs. manslaughter charges.

When I watched Ferguson prosecutor Bob McCulloch explain the grand jury decision, I understood all of the background processes.

My first thought was that this grand jury was out-of-process. What I learned from my instructor at Bentley (a criminal defense attorney and former assistant DA) was that the grand jury is made up of people off the street like you and me –  just like a trial jury.

The difference in a grand jury is that these citizens are not tasked with delivering a verdict. Their job is to decide if a criminal case has enough “probably cause” or merit to be prosecuted by the state.

Now how do you define “probably cause?” This is a gray area that most citizens are not schooled enough in the law to determine on their own when the case is very complicated.

My instructor told us that the prosecuting attorney (in the Ferguson case, that would be McCulloch) always drives this process. He works with the grand jury to help them understand the evidence, the law surrounding how it was obtained, and then always (always) makes a recommendation to the jury for whether there is probable cause.

I remembered this story because I wondered then what the point was of a grand jury if the prosecuting attorney was making the call every time. My instructor agreed that this was really not the intention of a grand jury when the process was started, but that it had evolved over time.

So when I heard McCulloch insist time after time that he had nothing to do with the grand jury process and that he sent his “assistants” to deliver the evidence, I wondered again. But this time, I wondered why he did not make a recommendation as prosecutors always do.

It would make sense that if the prosecutor did not make a recommendation to prosecute that the group of citizens tasked with the decision to prosecute would be less inclined to do so. Was McCulloch’s lack of involvement interpreted by the jury as a vote against prosecution? Especially given that he is the lead prosecutor? Would the jury surmise that the evidence was not strong enough to prosecute so McCulloch was therefore not pushing for it?

I wasn’t on that jury. And having been on trial juries several times, I can tell you that what happens behind closed jury doors is quite intense and can’t easily be guessed.

My thoughts on Ferguson are many. And they are all over the map as far as both Brown’s and Wilson’s culpability in a situation where I was not a witness. I always try to stay impartial until I’ve seen the evidence and heard the testimony.

But I can say that the grand jury process was not only not typical but very unusual. And process is so important in such a high-profile case. This was too much information for a group of citizens to weed through without someone with a legal, prosecutorial background.

Was a subtle message sent to the jury by McCulloch’s lack of involvement? I think so. And I also think that his hands-off approach was more about protecting his own political future than anything even close to justice.