Police car on fire in Ferguson, Missouri.

If you have walked by a TV or glanced slightly at the internet, you know that the grand jury in Missouri has decided to file a no true bill (not indict) Officer Darren Wilson for killing Michael Brown.

Likewise, if you have glanced at the TV or internet, you will get a wide swath of opinions that are based on an idea that people may have built up in their minds as to what the justice system is or should be.  Hopefully, this blog can educate some people as to what actually happens and how the law applies.

To be clear, this is not a discussion of Missouri law since we are unfamiliar with the specifics of Missouri law.  However, there seem to be extreme similarities with Florida law, so the following discussion is based on our experience with the Florida judicial system, and how that applies to the events in Missouri.

Why Wasn’t Officer Wilson Indicted

In law school, you learn that there are various different types of burdens of proof.  As a current criminal defense attorney and former prosecutor, I have learned in even more detail what those burdens are and how they apply to facts on a day-to-day basis.

The highest burden of proof is what everyone sees on TV, “beyond a reasonable doubt.”  Beyond a reasonable doubt is the absolute highest burden in the entire justice system, and it only applies to criminal law.  While you can’t assign a specific percentage to this burden, most lawyers will tell you it is around 90-95% sure that something happened.  In order to convict someone at a jury trial, the prosecutor must prove all elements of each crime charged beyond a reasonable doubt.  For example, an Aggravated Battery felony charge must be 1) a Battery (unwanted, offensive touching of another); and 2) cause serious bodily injury (or physical disfigurement, or the use of a deadly weapon).  If only element 1 is proven beyond a reasonable doubt, but element 2 is not, the person must be found not guilty by a jury.

The second highest burden of proof is the “clear and convincing” standard.  This burden is approximately 75% sure that something happened, and is the standard used to take children away from their parents.

The next highest burden is a “preponderance of the evidence.”  This standard is used in almost all civil law (think most lawsuits).  The burden is approximately 50% plus a feather; as if the scales were just ever so slightly tipped in your favor.  All a civil jury needs to find is that something more likely than not happened, a standard significantly below proof beyond a reasonable doubt.

One of the lowest burdens of proof is “probable cause.”  This is the standard that police need to arrest someone if they have reasonable belief that they committed a crime.  This is also the same standard a grand jury uses to issue an indictment.  Probable cause has sometimes been tried to be quantified between 15-20%, but again, there is no specific percentage.  It is an extraordinarily low burden and is relatively easy to meet if a crime has occurred.  There must be “a fair probability that contraband or evidence of a crime will be found.” United States v. Sokolow, 490 US 1 (1989).

The only lower burden is “reasonable suspicion,” which the police only need to pull your car over – the stop must be brief (e.g. you have a headlight out, so the officer should issue you a ticket or let you off with a warning, but they can’t hold you there for a large amount of time).

Ultimately, after hearing all the evidence, the grand jury determined that there was not enough “probable cause” to return an indictment against Officer Wilson for any of the myriad of charges that he faced.

What is Self-Defense?

In Florida, self-defense using deadly force can be used if you reasonably believe that your actions are necessary to prevent imminent death or great bodily harm to yourself or another, or to prevent the imminent commission of a forcible felony.  Florida Statute 776.012 details when deadly force is legal:

776.012 Use or threatened use of force in defense of person.

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

In other words, if you are being attacked, and you reasonably believe that you are about to suffer great bodily harm or death, you can legally kill another person.

In the Ferguson case, there was zero question that Officer Wilson killed Michael Brown.  While we may never know what happened in the grand jury deliberations, all indications lean toward the grand jury most likely believed that Officer Wilson reasonably believed that he was about to suffer serious bodily injury or death, therefore, he was legally justified in killing Michael Brown.

What Goes on in a Grand Jury?

Grand juries are extraordinarily rare.  In Florida, the overwhelming majority of cases are charged through an “Information.”  An Information is the official charging document, filed by the prosecutor, after determining that they can eventually prove the case to a jury beyond a reasonable doubt.

A grand jury is typically reserved for 1st degree murder and/or other Capital felonies.

When I was a prosecutor, I had the unique experience to present a case to a grand jury.  The process was different from anything else I’ve encountered in the justice system.  As a prosecutor, you walk in a give a statement as to what you believe the evidence will show.  You call witnesses to testify and ask them questions as if it were a regular jury trial, but the same rules of evidence don’t apply.  Neither the defendant nor the defense counsel are present.  The members of the grand jury (having previously been selected to serve for a longer term than regular jury members) ask questions of the witnesses and the prosecutor.  Once all the evidence has been presented and all the questions have been answered, the prosecutor(s) leave the grand jury with a blank indictment and a blank document for a “no true bill,” leave the room and the jurors deliberate.

If there is a “concurrence” of the 12 grand jurors, an indictment is issued and the defendant is charged with the appropriate crime.

Why is a Grand Jury Secret, Shouldn’t the Process be Open?

While it is okay to speak about what goes on in a grand jury, unless a judge has ruled the proceedings to be disclosed, it is illegal to talk about the substance of a grand jury.  To date, I have still never told anyone the substance or testimony of what was discussed inside the grand jury I presented to.

The Supreme Court of the United States has repeatedly held that a grand jury should be secret.  In the Supreme Court case decided in 1979, the court held, “if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily”; “witnesses who appeared before the grand jury would be less likely to testify fully and frankly”; and “there also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors”. Further, “persons who are accused but exonerated by the grand jury [should] not be held up to public ridicule”. Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 US 211 (1979)

Florida law states:

905.24  Proceedings of grand jury to be kept secret.–Grand jury proceedings are secret, and a grand juror or an interpreter appointed pursuant to s. 90.6063(2) shall not disclose the nature or substance of the deliberations or vote of the grand jury.


905.27  Testimony not to be disclosed; exceptions.

(1)  A grand juror, state attorney, assistant state attorney, reporter, stenographer, interpreter, or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury or other evidence received by it….

(2)  It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or communicated to any other person, in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof….

(4)  Persons convicted of violating this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083, or by fine not exceeding $5,000, or both.

(5)  A violation of this section shall constitute criminal contempt of court.

Why Didn’t the Prosecutor Push for an Indictment Against Officer Wilson?

The role of the prosecutor (in Florida) in a grand jury is set forth in Florida Statutes Chapter 905.19:

905.19  Duty of state attorney.–The state attorney or an assistant state attorney shall attend sessions of the grand jury to examine witnesses and give legal advice about any matter cognizable by the grand jury. The state attorney may designate one or more assistant state attorneys to accompany and assist the state attorney in the performance of her or his duties, or the state attorney may designate one or more assistant state attorneys to attend sessions, examine witnesses, and give legal advice to the grand jury. The state attorney or an assistant state attorney shall draft indictments.

In non-legalese, it is not the role of a prosecutor to push for an indictment, but only to present the evidence to the grand jury and explain the law.

Ultimately, the role of the prosecutor is not to file Informations or seek Indictments.  The role of the State Attorney (also called District Attorney in other states), is to seek justice; this is a critical distinction.  The prosecutor is sworn to uphold the laws, and if they don’t believe a crime is committed, they shall not proceed.


The worst injustice is to prosecute someone for a crime when the law does not support any type of charge against them.  Unless the State Attorney’s Office was seeking to charge Officer Wilson with 1st degree murder, they legally did not need to go to a grand jury (if the law in Missouri is the same as Florida).  The prosecutor took the extremely unusual step of letting 12 members of the community decide if there was enough probable cause to indict Officer Wilson for the unlawful killing of Michael Brown.

Based upon the physical evidence, witness testimony, and credibility of the witnesses as they linked, or did not link, with the physical evidence, all signs point to the grand jury finding there was simply not enough to charge Officer Wilson with a crime.

I have included the link from the New York Times that includes all the grand jury information released to the press.  After reading all the information, feel free to draw your own conclusions.  It is important to look at all the evidence as a whole, and not just one single piece of evidence.  Become a juror while reading the grand jury evidence, and look at totality of the evidence, the credibility of the witnesses, the photos, the diagrams, and ask if Officer Wilson was justified in his actions.

Hopefully this blog has been helpful in clarifying a little bit about the criminal justice system, and how the Rule of Law operates in action.



Brett Szematowicz

Greater Tampa Law, P.L.

Your Bridge to Justice

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