One of the most recent of the seemingly never-ending succession of Progressive complaints about the Ferguson Grand Jury is that the Grand Jury’s decision not to indict is inherently flawed because they were permitted to consider self-defense.

Those professing this argument rely for support on one of their favorite variations of the classic “straw man argument”:  they quote an authoritative Conservative figure in purported support of their position.

In this case, they are calling upon none other than Supreme Court Justice Antonin Scalia, as in the Think Progress post: Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury.

In particular, the Think Progress post states the following:

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.

What Does Williams Actually Say?

But is it true that Williams holds it is inappropriate for the prosecution to share evidence of self-defense with a Grand Jury, as was done in Ferguson? Let’s have a look.

Williams involved a case in which the defendant (Williams, naturally) had his indictment dismissed by a Federal District Court because the prosecution failed to present “substantial exculpatory evidence” favorable to the defense.  The District Court cited a local rule which mandated that the prosecution do so.  The Appellate Court affirmed this dismissal of the indictment, and the matter ended up before the Supreme Court.

Drawing here from the Court’s syllabus of Williams, for purposes of conciseness, the decision holds in in relevant part:

[R]equiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor’s side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence.

(emphasis added)

Williams Says Prosecution May Not Be Required To Present Exculpatory Evidence To Grand Jury

It requires no more than modest intelligence to note the particular contextual language used by Scalia in Williams.

Requiring the prosecutor to present exculpatory as well as inculpatory evidence . . . “

“[S]uspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence . . . “

“[I]t would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present [exculpatory] evidence . . . “

Clearly there is nothingnot one single word–of Williams that so much as suggests that the prosecutor may not or should not upon its own discretion and initiative present whatever exculpatory evidence it feels might advance the purposes of justice, nor is there a word of prohibition on the matter of presenting exculpatory evidence.

Williams merely says that the prosecution can not be required or obligated to present exculpatory evidence, nor have the legal obligation to present exculpatory evidence imposed upon them.

So It’s Good That No One Did Require Prosecution to Present Exculpatory Evidence to Grand Jury in Ferguson

No one, not even Think Progress, is suggesting that any authority over the prosecution required or obligated the prosecution to present exculpatory evidence, nor that they had legal obligation to present exculpatory evidence imposed upon them with respect to the Ferguson Grand Jury.

Thus, Williams is irrelevant to the Ferguson Grand Jury proceedings as a simple matter of law.

Was Presenting Evidence of Self-Defense to Grand Jury Inappropriate Even Absent Williams?

Now that we’ve discarded Williams as relevant to the Ferguson Grand Jury, it behooves us to consider the broader issue of whether there is something aberrant or contrary to justice in presenting evidence of self-defense to a Grand Jury.  After all, it is correctly noted that Grand Juries are rarely presented with a defendant’s legal defense of, say, alibi or misidentification.

Surely then, the prosecution must have have been acting aberrantly when they presented the Ferguson Grand Jury with evidence of Wilson’s having acted in self-defense?

The answer is, simply put, is no.

Self-Defense: Not Your Usual Legal Defense

Why?  Because self-defense is a fundamentally different defense than alibi or misidentification or any other non-justification defense.

When a defendant argues an alibi defense, he is not contesting that a crime has been committed.  Indeed, whether a crime has been committed or not is irrelevant to his defense, because his defense is that regardless of whether the underlying crime occurred, he was not there.  Whoever committed the claimed criminal acts, they were committed by someone else.

But a crime was committed.  Indeed, if the prosecution cannot establish that fact, for example if they cannot present probable cause on any element of the criminal charge, the Grand Jury is required to not indict.

Similarly with a misidentification defense.  Again, the defendant is not contesting that a crime has been committed, but rather is arguing that whoever committed the crime, it was some person similar in appearance to him, but not him.

But again a crime was committed.  Indeed, if the prosecution cannot establish that fact, for example if they cannot present probable cause on any element of the criminal charge, the Grand Jury is required to not indict.

A justification defense such as self-defense is a different animal of legal defense entirely.

Self-defense does not contest that the defendant committed the underlying acts.  It does not claim that he was somewhere else, as in an alibi defense, or that some similar appearing person other than him committed the acts, as in a misidentification defense.

Self-defense effectively requires the defendant to concede to having committed the charged acts.  One cannot simultaneously refuse to have committed the charged acts and simultaneously claim self-defense–to do so is an outright logical inconsistency.

Self-defense is an inherently deliberate act–you perceived a threat, and acted against it.

More importantly, an act of self-defense eliminates completely any criminality associated with the underlying actions that would otherwise be criminal.

Self-Defense Eliminates the Criminality of What Would Otherwise be a Criminal Act

In other words, self-defense acts to eliminate the criminality of the underlying acts, and thus effectively becomes a negative element of the criminal charge.  It is for this reason that 49 of 50 states require that at trial it is the burden of the prosecution to disprove self-defense beyond a reasonable doubt–just as the prosecution must prove each and every element of the criminal charge beyond a reasonable doubt.

More simply, if an otherwise criminal act was committed in self-defense, no crime has been committed at all.

It is the duty of the Grand Jury to determine whether there exists probable cause that a crime has been committed, and that the defendant is the person who committed the underlying acts.

In a self-defense case, of course, the second question is not contested–the defendant concedes up front that he committed the underlying acts, else he would not be entitled to claim self-defense at all.

The first question, however–there’s the rub.

In order for the Grand Jury to determine whether there exists probable cause that has been committed in a self-defense case, they must do more than merely determine whether there exists probable cause as to each and every element of the criminal charge.  This they must do, surely, because if they do not the Grand Jury will be instructed to not indict.

But in a case involving self-defense, probable cause on each and every element of the criminal charge is necessary but not sufficient for an indictment.

Why? Because probable cause could exist on each and every element of the criminal charge and yet probable cause of a crime necessary to support an indictment still be lacking.

Why? Because self-defense eliminates the criminality of the otherwise criminal underlying acts.

If Evidence of Self-Defense Is Adequate To Eliminate Probable Cause of a Crime, There Can Be No Indictment

A shooting done in self-defense, then, is simply not a crime at all, and if there is no crime there can be no indictment.

If either the evidence on the elements of the criminal charge is inadequate to support probable cause that a crime has occurred, or the evidence on self-defense is sufficient to eliminate probable case that a crime has occurred, the outcome from the Grand Jury’s perspective must necessarily be the same:  no-true-bill.

Thus, just as it is perfectly appropriate for the Grand Jury to consider all relevant evidence on each and every element of the criminal charge, it is equally appropriate for the Grand Jury to consider all relevant evidence on the matter of self-defense.

To Deny That the Grand Jury Should Consider Self-Defense is to Embrace an Absurdity

Indeed, to deny that the Grand Jury should consider self-defense is to embrace a legal and logical absurdity.

As noted, in cases of self-defense,the defendant necessarily concedes the underlying criminal acts, but defends them on the grounds that he was legally justified to commit the acts as a matter of lawful self-defense.

Were the Grand Jury be permitted to consider only the concession of the use of force, but not the claimed justification, then each and every act of self-defense would necessarily result in an indictment and be brought to trial, no matter how strongly the evidence in its totality supported the justification of that use of force.

A Secret Service Agent cuts down an assassin moments before the killer can take the President’s life, all caught on cameras by news agencies worldwide as the President delivers a major policy speech? Sorry, Agent, here’s your indictment, we’ll see you at the trial.  After all, he concedes he committed the killing, and merely claims legal justification for doing so–but the Grand Jury is not permitted to hear the justifcation.

A maniac gunning down children in a school is shot and killed by the school resource officer assigned to that duty, all events testified to by scores of surviving teachers and students? Sorry, officer, here’s your indictment, we’ll see you at trial.  Again, the Grand Jury is permitted to hear the concession of the use of force, but not the justification.

A murderously abusive husband invades his wife’s place of work, killing her colleagues with shotgun blasts as he seeks her out, until a security officer takes him out with a well-placed gun shot to the head, all events caught on the company’s CCTV system? Sorry, sir, here’s your indictment, we’ll see you at trial.  You get the idea.

I suggest that no reasonable or moral person could possibly argue for such legal outcomes.

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.