An Adversary Is Not a Panacea

Of the many features that separates and Anglo/American legal system from the civil code system that most of the rest of the planet uses, the one that really sets it apart is that ours is an adversarial system.  Two parties enter the courtroom, battle it out from their own perspectives and, most of the time, a winner emerges.  If the "truth" (if you follow me) comes out in the process, so much the better.  Key to this system is that each party controls its own agenda.  Neither the court nor the public at large gets a say in how a case is presented (or not).

Now, one of the few exceptions to this is the grand jury process, which is decidedly one sided.  The prosecutor runs the show.  The defendant usually doesn't have anything to do with it, much less the defense attorney.  Which is part of what makes the grand jury decisions in Ferguson and Staten Island so unusual.  As a result, some folks are wondering whether all that prosecutorial discretion isn't such a good thing, particularly if the prosecutor doesn't seem to want to get an indictment.

There's a discussion to be had there, but one thing that would not improve results, if we're assuming a prosecutor soft-pedaling things, is the presence of a defense lawyer.  This column at Slate offers a refrain I've heard before, but is worth repeating:

The version of Michael Brown’s shooting that the grand jurors heard was engineered by the prosecutors, who vigorously questioned witnesses when their testimony contradicted Wilson’s story and barely questioned witnesses whose testimony supported the officer’s version. Wilson received especially lenient treatment by the lead prosecutor. The final question he asked was whether there was anything else that Wilson wanted the jurors to know. He did:

'One of the things you guys haven’t asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse ... he still posed a threat, not only to me, to anybody else that confronted him.'

There was no defense attorney to question Wilson’s self-serving statement to the jurors.

Emphasis mine.  This after the author lauds preliminary hearings as an alternative to grand juries because:

These 'prelims' are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.

All that's true, but what would it have changed?  Why on Earth would a defense attorney in the grand jury have questioned Wilson about his "self-serving statement?"  That's not the defense attorney's job.  Nor would a prelim have made things any better.  Sure, it all would have been public, but, again, if the prosecutor is not inclined to grill the defendant (if he testifies), why would defense counsel do so?

There's an awful lot wrong when it comes to police getting away with horrible behavior, for various reasons.  Those need to be addressed.  But call to completely revamp the grand jury process - one that, like most other parts of the Bill of Rights, doesn't actually apply to the states - seems awfully short sighted.

The problem isn't that, occasionally, when a cop is involved, grand juries act as the kind of brake on state action they were intended to be.  The problem is that, in the run of the mill case involving a regular civilian, they hardly ever act that way.