Attorney Question of the Month
In August, Ferguson MO police officer Darren Wilson used deadly force in self defense against a larger, aggressive male he thought was going to kill him. The case was submitted to a St. Louis County, MO grand jury for a review of the evidence and after hearing testimony from Wilson along with the other evidence, that grand jury refused to indict Wilson for any crimes. This spurred questions about grand jury procedures, so we asked our Affiliated Attorneys the following question:
It is the Network’s position that except for giving the facts of the crime committed against them, members should not give a formal statement to police until legal representation is present. Following this line of thought, if called before a grand jury, should a client refuse to testify and likely be indicted or testify and hope for a no true bill? Why?
We published the first half of the many responses received last month. We conclude it this month.
Joel A. Brodsky
Attorney at Law
Without a doubt officer Wilson did not make any statements to anyone until he had consulted with an attorney. The best advise that can be given to anyone in a situation where they have used a gun, even in self defense, is that they not say anything to anyone until they have consulted with an attorney. I have been practicing law for 31 years, and my brother who is now a criminal court judge, used to be the public defender for the second largest county in Illinois, and when someone asks either of us if they should say anything before they have consulted with an attorney, we tell them “if you said ‘I didn’t do it,’ you’ve said four words too many.”
The Miranda warnings are the best evidence of this philosophy. In them you are warned that “anything you say can and will be used against you.”
If you think about that statement, what the Miranda warning is saying is that there is absolutely nothing that you say that will help you, and anything you say will be against your interests, because “anything you say can and will be used against you.”
The best thing to do, if you are going to carry a gun, is to have the name and phone number of an attorney of your choice in your wallet (hopefully with a 24 hour number where he or she can be reached - most criminal lawyers have answering services that can reach them after hours), and if you are in a situation, to tell the police very politely that you do not want to say anything without your lawyer present, and say nothing more until your attorney arrives.
This also applied to grand jury appearances. If you get a subpoena, call an attorney, and consult with him or her. In many states your attorney can go into the grand jury room with you to advise you. Do not think you can handle it on your own. I have had to appear before grand juries as a witness on two occasions, and I had an attorney with me both times to advise me, even with my knowledge of the law. To consult with an attorney is not a sign of guilt, it is a sign that you are smart, nothing more.
N. Brian Hallaq
BTA Lawgroup PLLC
31811 Pacific Hwy S B-101, Federal Way, WA 98003
So I happened to have both a criminal defense attorney and a prosecutor over to my house for dinner this weekend and the issue of Darren Wilson’s testimony at the grand jury came up. Both agreed that it was risky for Wilson, but they also think that the prosecutor might have been doing it for Wilson’s benefit.
I haven’t read the transcript of his testimony to see if he was getting softballs thrown at him, but I would agree that all things being equal, it was risky.
I think that I would save the defendant’s testimony for a trial, unless we knew that the prosecutor was sympathetic and only calling the grand jury in order to take the pressure off of him/her to charge. I would hate to lock in the defendant to the final version of his/her story so early in the process, and in such an unfriendly setting, when we don’t have all the expert’s reports in and reviewed, as well as potential good or bad witnesses interviewed.
David W. Wyatt
Law Office of David W. Wyatt
122 North Main Street, Ashland City, TN 37015
Before giving a direct response to this thought-provoking question, I must provide some assumptions I am using to respond. Yes, I am an attorney. I cannot possibly answer any question without complicating it.
First of all, I am assuming that the member involved in this scenario is NOT a member of the law enforcement community. A prosecuting attorney will analyze a self-defense shooting involving a civilian citizen different than they will when a law enforcement officer is involved in a self-defense shooting. Law enforcement personnel will inherently be given a certain “benefit of the doubt.” Second, I am working off the assumption that this case occurred in the Great State of Tennessee, where I practice criminal defense law. Third, I am assuming that a self-defense shooting has occurred in response to a criminal episode where the member feared for their life. In the unfortunate event a member is a victim of a crime and no self defense was required, you should cooperate fully with the authorities.
In Tennessee, the grand jury for a particular county is made up of 12 registered voters of that county.
The grand jury meets in secret and is a one-sided affair. The citizen-accused has no part in grand jury proceedings. Based on this, the member would not testify before the grand jury in Tennessee. Keep in mind that Darren Wilson was a member of the law enforcement community when he testified. The grand jury hears strictly the law enforcement side of things, or in the case of a direct presentment by another citizen, only the testimony of that particular citizen.
I am of the utmost belief that the member citizen-accused should never give a statement to police when they are accused of a crime or have been involved in a self-defense shooting. You may be saying to yourself, “But I was completely within my rights to defend myself with deadly force. I feared for my life.” You may be exactly right. However, keep in mind that ANYTHING you say can AND WILL be used against you in a court of law. I believe that if you are involved in a self-defense shooting you should not give a statement to police. Everything you say, unless recorded, may be paraphrased, scrutinized, twisted or taken out of context by police. I’ve seen this happen far too many times.
True Bills are returned in an extraordinary number of cases. This is as true in Tennessee as I am sure it is across the United States. As I recently heard on one of our nation’s 24-hour news channels, “A ham sandwich could be indicted by a grand jury.” When faced with the question posed, I would say that if a member is called before a grand jury, it is better to exercise your right against self-incrimination and refuse to speak.
R. Dan Reif
Attorney at Law
P O Box 58146, Cincinnati, OH 45258
The client should take his attorney with him to grand jury. While counsel cannot accompany his client into the grand jury room, the client, upon being asked a question while before the grand jury, may consult with counsel outside the grand jury room before responding to the question asked.
Jon H. Gutmacher, Esq.
Attorney at Law
1861 S. Patrick Dr., Box 194, Indian Harbour Beach, FL 32937
You ask if an individual facing indictment should testify before the grand jury. The question is one that cannot be answered in the form asked. Assuming you are involved in a case where the grand jury offered you an opportunity to speak before reaching a decision, you should have already had at least two weeks to discuss the matter with your attorney, and if you decided to go forward–would hopefully have been prepared for what was to come.
I handled a mercy killing where the main reason my client was not indicted was due to his testimony before the grand jury. I had time to evaluate the offer, and prepare my client and his family. So, the answer is that it can be a great opportunity. But, only expert legal counsel can make that determination with the full cooperation of the client.
Brenna, Brenna and Boyce, PLLC
31 E Main St., Ste. 2000, Rochester, NY 14614
While this is a great question, it’s not one easily answerable. First of all, not all states use the grand jury system (England abolished it years ago), and each state’s grand jury rules are not uniform. Federal grand jury practice, while uniform, is decidedly anti-suspect and so absent compelling evidence to corroborate your client’s testimony, is generally never a great idea. So, there is no “one size fits all” answer here.
In NY–where I practice–for example, I have routinely put clients into the grand jury when their testimony clearly established “self defense” or in legal terms “justification.” But, in NY I can go into the grand jury with my client, albeit not as an advocate. But, if my client has a question, we’re allowed to step into the hallway to discuss it if necessary.
Clients should never give a statement to the police prior to speaking with an attorney, period. It’s just that simple. Even if it is video-recorded, when they start the recording is up to them and it also assumes that what is being said is audible. The only thing one should say is, “Sir (Ma’am), I want to speak to a lawyer.” The worst is that you’ll spend a night in jail versus decades in jail.
If your client is a cop, cops generally have more “rights” than the average citizen–most police union contracts include a clause that they cannot be interviewed by internal affairs or detectives until the union rep is present and s/he’s unlikely to be “present” until the union attorney is available. I’m not saying that’s right, but if that’s an option for your client, even more reason not to voluntarily make a statement.
Keith H. Rutman, Esq.
Attorney at Law
501 W. Broadway, Suite 1650, San Diego, CA 92101
“If called before a grand jury,” is the first issue to be addressed. It is extremely rare for the target of a grand jury to be called before the grand jury and given the opportunity to testify. I believe political pressure was the underlying reason why Officer Wilson was given such a rare opportunity.
Should a client refuse to testify? This clearly is a judgment call for his attorney to make. Remember that the attorney does not have the right to be present in the grand jury room. Any advice on how to answer the question would require the witness to be given permission to leave and consult with counsel on a question by question basis. This can be very time consuming, but very valuable for the attorney. It would clearly depend on the extent and nature of the statements given by the client before he ever sat in the witness chair and his attorney’s ability to get access to them as well as the other evidence so as to avoid the perjury trap.
“Likely be indicted or testify and hope for a no true bill?” Hope is never a valid legal strategy.
As a criminal defense attorney, I would appreciate the opportunity to convince the prosecutor not to charge my client in the first place, but sending a client into the lion’s den is often a losing proposition. This one [Ferguson] happened to turn out differently.
Sean P. Healy
Healy Law Offices, P.C.
113 E Houston St., Tyler, TX 75702-8130
The answer is definitely “it depends.” There are cases where a person has chosen to remain silent and not been charged (or convicted). There are cases where a person has chosen to testify before the grand jury, and not been charged. This could be an opportunity to terminate the case without being charged or having a trial, which saves money and avoids emotional trauma.
Some of the considerations include:
- Will the person be a persuasive witness? Can he or she testify credibly without having an attorney present for advice?
- Does the person have a criminal record?
- Are there any harmful facts that will only be discovered if the person testifies? The worst possible outcome is to hand a conviction to the prosecutor by testifying. Can the prosecutor make his case without information from the accused?
- How consistent is the other evidence with the self-defense theory?
- How clearly and accurately does the person remember what happened? People often have trouble remembering and testifying accurately about deadly force incidents.
- Will the grand jury hear enough evidence to consider self defense, without the person testifying? If they only hear the case for murder, without the exonerating circumstances, they will probably charge the person.
- Is the prosecutor the type to pursue a conviction no matter what, or the type who understands that “doing justice” sometimes means not charging the person with a crime?
- Does the jury pool favor the person? What are the prevailing local attitudes toward guns?
- Is the case heavily publicized or politicized? How will that affect things?
- Is the person innocent or guilty? In a self-defense case, was the person justified in using force or deadly force?
This is a judgment call that should be made with the help of an experienced defense attorney.
A big “Thank you!” to each Network affiliated attorney who responded to this question. Please return next month when we ask our Affiliated Attorneys a new question.