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Daily Beast’s Jonathan Alter, Hugh and the Prosecutor Callers Debate On the Ferguson Grand Jury Decision

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HH: I’m joined now by Jonathan Alter, columnist for Bloomberg View. Hello, Jonathan, Happy Thanksgiving week to you.

JA: Happy Thanksgiving week to you. I actually, I’m writing the column now for the Daily Beast, not Bloomberg View anymore.

HH: Oh, well I’m glad to know that. I will make a note on that, Daily Beast. All right, Jonathan, first question, was justice done to Michael Brown yesterday?

JA: No. You know, I mean anybody who knows the way the legal system works, as I know you do, knows that as Judge Wachtler on the New York State Supreme Court once put it in an interview, a prosecutor can indict a ham sandwich. So what happens in our legal system is that prosecutors go to grand juries and they recommend indictments. They don’t go in and just dump a huge amount of material on a grand jury and then say hey, do what you want, you guys. All they need to do is tell a grand jury that there is probable cause for some kind of crime possibly being committed. And if this wasn’t probable cause for an involuntary manslaughter charge, I don’t know what was. That’s what they should have done, is said there’s probable cause not for first degree murder, not for anything like that, but for involuntary manslaughter charge, and then let Officer Wilson go on trial. That’s the way it works in 99.9% of other cases. And there’s no reason why it shouldn’t have applied in this case as well.

HH: Now have you talked to any prosecutors, Jonathan, about that?

JA: They all agree. I mean, any prosecutor I have…

HH: Actually, I spent an hour right before the show with a 22 year veteran of the County of Orange prosecutors…

JA: No, I’m not saying they all would have recommended prosecution, but they all agree that this is a huge anomaly.

HH: Actually, that’s simply not true. The one I talked to, randomly selected because we had lunch set up for a long time who has done dozens of presentations to grand juries, says it is frequently the case that this is done. The only unusual thing about this is that the police officer testified, because that is an extraordinary indication of innocence, as no guilty person ever testifies before a grand jury, because you can’t have defense counsel with you.

JA: Well, that’s true. But if you, I think if you look a little further into this, and there’s been, you know, nowadays with the web, this is all public knowledge pretty quickly, what’s called a probable cause hearing, is granted in a tiny, infinitesimal fraction of cases. So even, so it’s just highly, highly unusual. There was nothing standard about this. You’re right, there was a standard that the police officer testified, although it is very common for police officers to testify before grand juries. But…

HH: Not when they’re suspected of a crime.

JA: Well, that’s true.

HH: So what I’m saying is I’ve only talked to one prosecutor in depth, but I really, I’m not a prosecutor, or even though I was at the Department of Justice, I don’t know much about it. So I wanted to talk to one. And my impression from him is that nothing is controversial here in the eyes of the professional prosecutors, maybe on the talking head prosecutorial bar, but that in fact he thought justice was done, and that there was no probable cause, and that this officer absolutely shouldn’t have been charged. But you think he should have been charged with manslaughter?

JA: Oh, he absolutely should have been charged with involuntary manslaughter.

HH: All right, next question, do you think the governor, Jay Nixon, did a good job yesterday?

JA: No, I don’t think so. I mean, I think that he should have been in some better touch with McCullough, the prosecutor, so that this wasn’t announced late at night. That was ridiculous. Now I know they said they don’t want, they didn’t want to announce it where it might interrupt rush hour or something like that, but if it was done during the work day, you would not, you just would not have seen this happen, I don’t think, to the same degree. And now it’s possible there might have been looting and rioting, you know, after hours in any event. We had so much of it over the summer. But you know, I just thought that the timing was really peculiar.

HH: Do you think the President of the United States did a good job yesterday?

JA: I think he did. I think he was right to deliver those remarks. He went on too long. I think his remarks today were a little bit more on point. but he was trying to calm things down. He was quoting Michael Brown’s father, to tell everybody to cool it and prevent violence. And that’s part of his job.

HH: I had Dr. Ben Carson on to begin the show. I want to play for you one exchange I had with him.

HH: Is it going to get worse before it gets better in the United States, because after all, we’ve had an African-American president for six years, Ferguson is a racially-charged situation. You’re an African-American running for president on the Republican side, and I say that with the assumption that you will run, and I know you haven’t formally declared, but you’re all but in. Is it going to be another hundred years before this tableau stops unfolding every time there’s a white-black incident?

BC: Well, you know, I actually believe that things were better before this president was elected. And I think that things have gotten worse because of his unusual emphasis on race.

HH: Can you explain more? What do you mean by that? How did they get worse, and how did he contribute to it?

BC: Well, for instance, in the incident with Henry Louis Gates, Skip Gates, and him calling out the police, and you know, how they always do this kind of thing, and the Trayvon Martin case, you know, if I had a son, this is what he would look like, rather than trying to take the balanced, objective look at things, and then, you know, what’s happened here. And then the way, which really irritates me to some degree, the way he and a bunch of progressives manipulate, particularly minority communities, to make them feel that they are victims.

HH: What do you think, Jonathan?

JA: I think he’s full of it, to tell you the truth. I mean, first of all, he didn’t say in the Henry Louis Gates thing oh, this kind of thing always happens. That’s not what he said. So with the Trayvon Martin case, just a human reaction. If I had a son, he’d look like Trayvon. That was a perfectly human and reasonable thing for him to say. And in this case, he’s done, the President’s done absolutely nothing wrong. He’s trying to prevent violence, and trying to use his authority in the black community as the first black president to tell African-Americans in Ferguson to cool it. And you know, if Ben Carson doesn’t believe that that’s an important thing for a black president to do, he has no business running for president.

HH: Do you think that the media should withdraw from Ferguson?

JA: No, it’s a legitimate story. And when these knuckleheads are out looting, it needs to be covered.

HH: But does the presence of so much media in fact incite the very violence? You know, some two dozen people lost their livelihoods yesterday. I was in L.A. during the riots of ’92, and no one ever covers the aftermath when the insurance sums come in and they’re not equal. You lose four months of business operation.

JA: Oh, I know. It’s terrible.

HH: I mean, it’s a nightmare. It’s a nightmare.

JA: I was there in the aftermath, also. I went with President Bush touring the riot scene. It’s just awful for the local businesses.

HH: So the media is, they’re on like riot watch again tonight. At what point do they close up shop and go home? And when do they take off the incendiary people? I mean, Van Jones was on yesterday. If he’s ever been near a grand jury, then I’m a circus elephant rider, because this is just, people are saying the dumbest things about grand jury indictments.

JA: Well, I mean you and I just disagree on that, Hugh. I mean, this is, it’s actually not a matter of opinion. This case, whatever the prosecutor you talk to had to say to the contrary, this case included what’s called a probable cause hearing. And normally, you don’t, you know, you don’t need a long review of the evidence in the grand jury. The conflicting evidence is reviewed at trial. So this was a complete anomaly.

HH: No, actually, Jonathan, it isn’t.

JA: …in the criminal justice system.

HH: But what I was referring to with Van is that, Van Jones, is that he said it’s a travesty that the family learned at the same time as everybody else. In fact, that’s not a travesty. That is the ordinary course.

JA: Oh, right. That’s right. Oh, I agree with you on that. No, that was in the ordinary course of things. But you know, what is just important to keep in mind is that a grand jury is not a trial. Now it may well be that…

HH: Jon…

JA: …it may well be that, I know your listeners all know this.

HH: Yeah, and I’m a law professor. But this is not, as a law professor, Jonathan, this was not an anomaly. Grand juries are used all the time. If you’ve got an easy lock-down probable cause, you go to a judge, you have a preliminary hearing, boom, bang, done. But if you have a complicated case like this, it happens dozens of times.

JA: And it really, I mean, you know, I should forward to you some of the email that I’ve received from, you know, lawyers, you know, who appear before grand juries, lawyers whose clients are indicted by grand juries every day.

HH: Okay, I’m going to ask prosecutors out there to…

JA: And I think that works the same way. Or talk to some defense attorneys, because…

HH: No, not…it’s prosecutors.

JA: What they say is that their clients never get the opportunity. A lot of them would like to appear before the grand jury.

HH: No, no, no. No…

JA: Yes.

HH: Jonathan, stick around with me. Stick around with me. Nobody goes before a grand jury unless they’re absolutely innocent. Never. You don’t do it.

— – – – –

HH: Jonathan, what I was saying before we went to the break is that defense counsel don’t want their clients in front of grand juries.

JA: Not true.

HH: Okay, I want to go to Lynne who’s a prosecutor calling from Orange County. Hey, Lynne, you’re on the Hugh Hewitt Show with Jonathan Alter. I have no idea who you agree with here, but tell us your position.

Lynne: Okay, so I’ve been a prosecutor for over 22 years. I have handled well over two dozen homicide cases and taken seven to verdict. Mr. Alter could not be more wrong about several things. First of all, the idea that prosecutors go into a grand jury and we always ask for an indictment, that’s completely incorrect. The only time we ask for an indictment is when we personally have an abiding conviction that we believe there’s enough evidence to get a conviction beyond a reasonable doubt. We routinely will go in with a grand jury and not give them particularly a request for a particular charge. We will present to them all the evidence, both the good and the bad, which by the way we have a moral and legal obligation to present all the negative aspects of our case, not just the positive. That’s why they…both the bad and the ugly, because they have a moral obligation…

HH: You’re breaking up, Lynne. Would you call back on a different line? Jonathan…

JA: Yes, that, can I…

HH: I really think you need to talk to some prosecutors.

JA: Yeah, and you need to talk to some defense attorneys. So just to give you, first of all, I’d like to know from Lynne when she calls back what percentage of the cases that she presents to a grand jury do not result in indictment, and where she recommends indictment.

HH: And by the way, Duane, would you make sure they keep an eye open for Lynne? Go ahead.

JA: Let me just address this point. I just got off last week a jury in Newark. I was a juror, if you can believe it, Hugh, and the defendant who was convicted testified in his own defense. This case was kind of preposterous, but he wanted to take the stand and testify in his own defense. He did so. Believe me. His attorney would have loved it if the grand jury had given him the option of doing that before the grand jury.

HH: Jonathan, time out for a second.

JA: They could have tried this up with the grand jury.

HH: Let’s pause right there. Do you realize that defense counsel aren’t allowed in the room?

JA: I understand that.

HH: No defense counsel.

JA: But in this case, the prosecutor, but they still have counsel. And in the same way that Wilson’s counsel was glad that the prosecutor in this case did him the favor of allowing him to testify, any other defense attorney would, you know, if they thought their client was innocent, which in some cases they are, Hugh, you know, would have liked the opportunity to have, to testify as Wilson did.

HH: Jonathan, what I, Lynne has not called back, by the way, 1-800-520-1234, and I’m encouraging her to call back. But Jonathan, you’ve got to believe me on this. They’re…I don’t know if you found the one defense counsel in America who wants a client who is other than…

JA: A probable cause hearing? They all want that.

HH: No, a grand jury, before a grand jury.

JA: They all want what are called probable cause hearings before a grand jury.

HH: Nobody, but what I’m asking, nobody wants, lets their client go to the grand jury if there is a scintilla of doubt in their mind that they are innocent.

JA: Not true.

HH: That’s the bottom line.

JA: That’s just not true.

HH: It is.

JA: I mean, if there’s a, they want, look, there are cases where they believe that their client is innocent. You’re operating from a stereotype that all defense attorneys are certain that their clients are guilty That’s not true. And there’s, you know, we know form the work of the Innocence Project and the Center on Wrongful Conviction, and of course, Northwestern and lots of other legal projects that not every suspect who comes in there is guilty.

HH: Of course, not.

JA: Most of them are, but not all of them.

HH: But Jonathan, what I’m getting to…

JA: And some of them are more than happy to have a probable cause hearing before a grand jury, but they can’t get them…

HH: What I’m getting to…

JA: because the prosecutors don’t offer them probable cause hearings the way they did Wilson in this case. So I disagree with you.

HH: There are lots of variations across many different places, and absolutely the rules do change. But what I am pointing out is that nobody wants their client to go into a defense, into a grand jury, because they’re not allowed in the room, and they don’t have counsel.

JA: Right.

HH: If they want to consult counsel, they have to stop and leave the room to go out.

JA: Right.

HH: So for someone to go before a grand jury indicates enormous confidence in their innocence. That’s my point, is that…

JA: Well, that’s true. That’s true. And I think that’s a point…

HH: Enormous confidence in their innocence.

JA: I think that’s a point in Wilson’s favor, is that he was so confident of his innocence that he was willing to go before the grand jury. But my only point, Hugh, is that there are other such defendants who are willing to do this, but they’re not allowed to do it by the prosecutor, because normally what happens is probable cause is such a low standard, that the prosecutors don’t want to get conflicting evidence. They want the grand jury to return indictments so they can try or have the case, try the case or have it pleaded out.

HH: And so what I’m getting back to is having talked to a prosecutor, two of them today, one on the phone, Lynne, 22 years, the other one, a man, 22 years, what happened, and I think it’s important for the media to get this right, is simply not extraordinary. It’s not out of the ordinary at all.

JA: Not at, you’re not right about that. Now maybe in the case of a police officer, it’s not out of the ordinary, when a police officer is a defendant.

HH: Jonathan, but we’ve had two…

JA: I’m sure that plenty of them give police officers breaks like this in cities across the country. But if you’re talking about defendants in general, it is extraordinarily out of the ordinary.

HH: Jonathan, I’m just going on evidence. We had Lynne, a 22 year veteran, and we had, I can’t name the other person, it was off the record. So I’ve talked to two prosecutors with 44 years’ experience today.

JA: Well, I can’t wait for Lynne to get back on the phone.

HH: But I mean, have you talked to any prosecutors today?

JA: Yeah.

HH: You?

JA: And you should, and former federal prosecutors. And by the way, you should, you know, list some, not every guy on TV who is a lawyer is a yokel. You know, some of them are actually talking some sense. And there’s a big, strong…

HH: I have yet to hear one, but let’s talk to Tony, who’s an officer. Tony is calling from Los Angeles. What kind of an officer are you, Tony?

Tony: I’m an officer of the court. I was a DA for 22 years in L.A. I’ve been in private practice, criminal defense for the last seven years. In California, you by law have to notify the target of the investigation of the hearing, and give him the order, or the option that he testify. So I don’t know what this guy is talking about. Everybody…

JA: Well, that’s interesting, because…

HH: Okay, and here’s, Lynne’s back. Thank you. I want to go back to Lynne. Lynne, you’re back. And Jonathan wanted to talk to you about, you know, that argument that this is unusual. Would you please…

JA: So in what, Lynne, I’ve got a question for you. In what percentage of cases do you…

HH: Oh, crap.

JA: …that you bring to a grand jury, do you, do not result in indictments?

HH: Lynne, are you there? No, bad cell phone. She dropped again. Doggone it, because that’s a great question, Jonathan. I would love to have that answered. And I don’t know who else is a prosecutor here. Nancy, are you a prosecutor?

Nancy: Hello?

HH: Are you a prosecutor, Nancy?

Nancy: No, I’m not.

HH: Okay, I’m trying to just talk to prosecutors. Thanks for the call. I’m going to keep Jonathan over if he’ll stay. Dave in Oregon, are you a prosecutor?

Dave: No, sorry, Hugh, but legal education. And the critical legal thinking that needs to be addressed in this subject, I think it’ll explain where Jonathan’s coming from, and why the confusion, if you’ve got a minute.

HH: Take 30 seconds, and then I’m going to a break.

Dave: Yeah, it’s just this simple, Hugh. You as a law professor see criminal law as requiring two elements – act and state of mind. The progressives see two requirements. First is race, white versus black…

HH: No, that’s actually not what’s going on here. I think what’s going on here, and I’ll ask Jonathan to say. Lynne is back on line 1, Jonathan. I want her to answer your question. I hope you can stick with us.

— – – –

HH: And Lynne, the prosecutor, with the bad cell phone. Have you pulled over, Lynne?

Lynne: I did.

HH: All right, now let’s go back to the obligation you have to provide exonerating evidence. But first, Jonathan has a question for you. Jonathan?

JA: I’m just wondering, Lynne, in what percentage of cases that you bring before the grand jury, and recommend indictment, is no indictment offered?

Lynne: What percentage of no indictments?

JA: Yes.

Lynne: Typically, it’s not very probable, because we’re not going to bring an indictment, we’re not going to bring a case before a grand jury typically unless we believe there’s probable cause to actually go forward with a jury trial…

JA: Right.

Lynne: …because we, and let me finish, because we think there’s going to be a conviction. However, there are certainly cases where we as prosecutors do not believe there’s enough evidence to obtain a conviction. However, the community may have a different opinion of the case, and we want to put it in front of the grand jury and let them make the call. That’s when we don’t get an indictment. And that is not the, that’s the more rare event.

HH: Now Lynne, my question is…

JA: Lynne, how rare is that? That’s what we’re discussing. What percentage of cases fall into that category, that latter category that you just described?

Lynne: I would say less than 5%.

JA: Yeah, that’s my point.

HH: Well, that’s my point, too. This is very rare…

JA: Extraordinarily rare. Extraordinarily rare.

HH: But it’s a very rare proceeding, but for those proceedings in which it happens, the outcome is not rare.

HH: Lynne, I’d like to ask you…

JA: So Lynne, can I ask you another question, because it’s great to have her, to have a prosecutor on the line. I’d love to ask her…

HH: Oh, I’ve got, in fact, Jonathan, I’ve got three prosecutors lined up as long as you’ll stick with me.

JA: Yeah.

HH: I’ll keep them going. But let’s go back and forth with questions. Lynne, my question is how often do defense counsel allow their clients to appear in front of grand juries?

Lynne: Okay, there’s two aspects to that answer. And the first aspect is very rarely does the defense know that a grand jury is being convened for an indictment, because typically, grand juries are being done in cases where it’s secret testimony. It’s something where perhaps you’ve got Mexican drug cartels involved, and it’s pretty, and witnesses put the witnesses in danger. So it’s typically a secret proceeding. The second question, the defense attorney knows that we are going before the grand jury, it is exceedingly rare. I would bet my house that 99.9% of the time, the defense attorney is never going to proffer their defendant to come in and testify. I’ve taken to jury trial over 200 jury trials. I can tell you the number of times that a criminal defendant has gone up and testified in a jury trial is probably less than 10% of all those jury trials. The vast majority of the time, they don’t do it. And they’re not going to do it at the grand jury level, because that is, that’s the least strenuous, it’s the time that the prosecutor has the most ability to do what they want to do in the courtroom.

JA: Right.

Lynne: So they’re not going to do it. It leaves the client way, way, way too open for exposure.

JA: Right.

HH: Your turn, Jonathan.

JA: No, we all agree on that. But let me ask you this, Lynne: So the trial, if I’m not mistaken, is the proper place to weigh the conflicting evidence.

Lynne: That’s completely wrong.

JA: That’s what a trial is for. Is that right?

Lynne: Completely false. And a grand jury, it’s totally different than a preliminary hearing. At a grand jury, I am obligated by law to bring in the evidence that’s beneficial to the defendant. If I don’t do that, I would be fired, I would be rightly accused of misconduct. The appellate courts would find me in…

JA: You’re talking about at a hearing? Or you’re talking about in cases where you’re recommending an indictment and will get an indictment…

Lynne: Absolutely.

JA: You are bringing, you are digging deep and finding anything that could possibly be exculpatory for the defendant?

Lynne: Absolutely. We are obligated by law to bring in anything that’s exculpatory to the defendant. But our primary goal is to see that the right thing is done. And sometimes…

JA: But most evidence hasn’t been collected at that point, because no witnesses have been heard from in court, you know, and so the evidence is very limited. And you know, what I’ve heard from prosecutors and defense attorneys in the last, you know, day is that a trial is where the evidence, which is accumulating over time, as witnesses come in to testify in the trial, that’s where you know…

HH: Okay, 30 seconds to Lynne, and then I’ve got to go break, and I’ll get another prosecutor. Go, Lynne.

Lynne: Okay, there isn’t going, absolutely a great opportunity…

JA: …for jurors to hear the evidence.

Lynne: …because you have a criminal…

JA: Involuntary manslaughter?

Lynne: Just a minute, Mr. Alter, there actually is a greater opportunity at a criminal trial, because you have a lot more time, and the defense attorney has an opportunity to cross-examine.

JA: Right.

Lynne: But that’s different than getting an indictment. And indictment…

JA: Right, so getting an indictment, are you saying there was no probable cause for involuntary manslaughter in this case?

Lynne: There never, this could be a first, a second or a vol, but this case could never be involuntary manslaughter. That requires that someone dies in the course of a misdemeanor, or that they’re engaged in unlawful activity such as unlawful to enter. This could never be invol.

HH: I’ll be right back with more prosecutors and Jonathan Alter. Thank you, Lynne.

— – – – –

HH: Our prosecutor fell off there, the one I had up behind Lynne, Jonathan, so I’m going to ask you this question. This is a very sincere question. People of the left right now have an opportunity to really speak into this about justice. I believe justice was done here. I believe a lot of terrible commentary is out there. Has anything you’ve heard made you rethink maybe your conclusions about what was going on in Ferguson?

JA: Yeah, I mean, I think that, I don’t know, or pretend to know what went on. And I thought that Officer Wilson’s interview tonight with George Stephanopoulos was important to watch. And I thought he made a good case for himself. But that’s what trials are for. And you know, the question is not whether he’s guilty or not guilty. I don’t know. And I don’t think anybody should assume that they know. But that’s not the standard for an indictment.

HH: But Jonathan, my question is you don’t want people, if there’s no evidence of probable cause, you don’t want them put on trial, do you?

JA: No, there is evidence for probable cause. I mean, probable cause is a really easy standard.

HH: Actually, but you have to reach it.

JA: It’s ordinary an easy standard. I mean, reaching it in this case, you know, there’s enough prima facie evidence for probable cause for involuntary manslaughter. Now I know that Lynne the prosecutor was scoffing at involuntary manslaughter. But the prosecutor in this case, McCullough, offered that as one of the options for the grand jury. So clearly under Missouri law, involuntary manslaughter is something that the grand jury should have considered.

HH: But if 12 people….

JA: I mean, 12 shots were fired…

HH: And I don’t know if it was a 9-3 vote…

JA: 12 shots were fired after, you know, it was pretty clear that he didn’t have a weapon, or Brown would have used it, according, you know, presumably, if he was as terrifying as you know, as Wilson told Stephanopoulos, he would have drawn his weapon at some point during this confrontation. He goes as far as 130 feet away.

HH: But Jonathan, those are facts. Let me ask you this…

JA: According to some witnesses.

HH: If there are 12 people on that grand jury. If none of them believe there was probable cause, do you want them to indict him anyway?

JA: No, no. But the question is not whether you know, they should have at sea amid luminous documents and conflicting evidence, that they should have been able to figure this out. That’s what prosecutors are for. They tell the grand jury what to do. Remember the old saw, you can indict a ham sandwich.

HH: But what Lynne was saying…

JA: And prosecutors get an indictment that he wants.

HH: What Lynne was saying, and what my…

JA: And the question is whether the…

HH: What Lynne was saying and what my prosecutor told me today…

JA: ….prosecutor, Hugh…

HH: …is that prosecutors when they don’t believe there’s probable cause, will nevertheless often go to a grand jury in order to show the public that there wasn’t probable cause.

JA: Okay, so the question here, Hugh, is why did these prosecutors, if they were treating, you know, a police officer like a citizen, and he is a citizen, and he doesn’t deserve any special treatment in the eyes of the law because he wears a badge. Now there, it’s true that there are laws in terms of lethal force and when a police officer can use them, use it, which need to be considered. But you know, in the eyes of the law, he is equal to his fellow citizens. And you have to conclude here that prosecutors who work, understandably hand in glove in the public interest with police officers every day, were not judging whether to bring an indictment in a neutral way.

HH: Jonathan, actually, I think you’ve got this exactly wrong.

JA: And then…

HH: In fact, I think he was put under a heavier burden because he is a police officer. I do not believe if he had…

JA: Oh, no, come on. 12 shots fired? No return fire? Please.

HH: Let me finish for a second. Let me just finish for the audience purposes.

JA: Please, please.

HH: It’s because, what was explained to me earlier today is that when district attorneys come to the conclusion that police officers are not guilty of a crime, they will nevertheless take it to a grand jury to prove to the community that he was not guilty of a crime to avoid the accusation you just made of collusion between prosecutors and officers, and that in fact it’s harder for police officers to avoid indictment, because they have to go through the process twice.

JA: Hugh, what you’re just, to avoid indictment, they’re almost never indicted. I mean, what you’re talking about is ridiculous.

HH: No, actually, it’s not.

JA: To avoid indictment? When’s the last time a police officer was indicted for shooting somebody and avoiding arrest or…

HH: Actually, police officers were indicted in Fullerton this past year.

JA: Hugh…

HH: Police officers were indicted in Fullerton this past year for the murder of a schizophrenic man at a bus stop where he was beaten to death.

JA: Yeah, it’s extraordinarily, it’s extraordinarily rare. Extraordinarily rare.

HH: It isn’t actually. It’s extraordinarily rare that a police officer shoots someone without probable cause. That’s what they do, Jonathan. I mean, this is why I think the left’s narrative here of trying to turn police officers into bad guys is so bad for the country.

JA: I’m not trying to turn, I’m not trying to turn police officers into bad guys. That’s ridiculous. And by the way, that’s not consistent with what I’ve been writing for 25 years. It’s, you do, you have to weigh, if you’re approaching this in a neutral way, which is the way the prosecutors should have, you have to weigh a lot of admittedly conflicting eyewitness testimony, but nonetheless eyewitness testimony against the officer’s testimony. The proper place to do that is a courtroom in a trial.

HH: No, Jonathan, that’s just not true.

JA: Well, no that is true, because all of that eyewitness testimony is evidence. It is evidence.

HH: But Jonathan, that’s why they have grand juries and probable cause hearings.

JA: No.

HH: If there isn’t probable cause, putting someone through a trial when there isn’t probable cause is a horrible system.

JA: Probable…

HH: That’s a miscarriage.

JA: The probable, all that you need to do to meet the probable cause standard is believe that there is a 50.1% chance that some of those eyewitnesses are telling the truth, not that you believe they’re definitely telling the truth, but just a 50.1% chance that one of those eyewitnesses is telling the truth.

HH: That’s not true.

JA: That’s probable cause.

HH: Probable cause hearing takes all of the evidence…

JA: That’s probable cause.

HH: …and no, it’s not one, it’s not one witness…

JA: That’s all you need.

HH: …overriding all the other witnesses.

JA: None of the…not weighing all the conflicting testimony. That’s for a courtroom.

HH: No, Jonathan, you’re just, you’re simply wrong about this. That’s what a grand jury proceeding is.

JA: No, you’re wrong. Look, neither of us are prosecutors or defense attorneys.

HH: No, but I have been in the Department of Justice, and I do teach Constitutional Law.

JA: I’m not even a lawyer. I’m not a lawyer, and I’m not going to pretend…

HH: And I did stay at a Holiday Inn last night.

JA: …I’m an expert. I’m not going to pretend I’m an expert on this. All I’m telling you is I interviewed prosecutors and defense attorneys, and they say you’re wrong.

HH: Okay, we’ll be right back. One more segment with Jonathan. If a prosecutor calls, I’ll let them correct him for the last time. But that’s simply not true that it’s about one witness account, 50%. That’s not the case.

— – — –

HH: Jonathan Alter has been my very gracious guest from the Daily Beast. He’s a man of the left. You can follow him on Twitter, @jonathanalter. Jonathan, I want to give you the last three minutes uninterrupted to make your case why you think a miscarriage of justice has happened in Ferguson.

JA: So first of all, let me just, in order to address this concern that you have that I’m anti-police or whatever, it’s completely wrong. I just last week got off a jury in Newark where it was the word of a police officer against a defendant, and we went easily for the police officer’s version of events, okay? But that’s what a trial is for, all right? What a grand jury is for is to determine whether there is probable cause. Probable cause is not a preponderance of the evidence, not beyond a reasonable doubt. It’s a very specific and very low legal threshold to get over. And it’s simply whether there’s probable cause to weigh the competing version of events, to weigh the eyewitness testimony against the defendant’s testimony, and try to figure out what the truth is, which is what a trial is for, not a grand jury. A grand jury is not an effort to find out what the truth is. It’s an effort to find out whether there is probable cause to have that examination of what the truth is. And so you know, that’s our system. So the reason this was a miscarriage is on its face, there was probable cause not of first degree murder, but probable cause that you know, of, as the prosecutor suggested as an option, involuntary manslaughter in this case. So you know, something went terribly wrong that night. 12 shots were fired without any return fire, without the defendant and victim having a weapon. And on its face, that suggests we needed more fact-finding, which is what a court of law and a trial is for, to get to the truth.

HH: All right, Jonathan, we disagree profoundly, but I really appreciate you coming on and taking the callers, and taking the input from the other side. I hope you’ll come to the different conclusion. I suspect you’ll hear on Twitter from a lot of prosecutors about what probable cause is and the actual standard. But I’m very glad you, unlike a lot of your colleagues on the left, are open to the conversation, because honestly, not many of them want to have this conversation with prosecutors. And I really do think the media, I haven’t been watching MSNBC. CNN has just got some of the flakiest people, and Van Jones should just be banned. I mean, the idea that you have to call the defendant, or the victim’s family at the same time you release, that was incendiary last night. It was just wrong.

JA: Yeah, that’s not true. And the prosecutor was right that these proceedings are in secret. So a lot of times, the reason that the defendant doesn’t testify is because they don’t even know that the prosecutor is gathering evidence.

HH: Thank you so much, Jonathan. We’ll talk soon.

End of interview.

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