Before I let you all go this Easter Sunday, I do want to take a moment to address some of the more emotional and political talking points circling around this guilty verdict. I want to make clear that I don’t mean to suggest any malicious state of mind with respect to anybody espousing these talking points. Indeed, in the context of social and political discussion and debate they have merit.
In the context of legal analysis, however, these talking points are leading well-intentioned people to bad legal conclusions. This doesn’t make these people bad, it makes them normal—but bad legal reasoning rarely arrives at the right legal answer.
Garza Is Just a Soros-Funded Politically-Motivated Prosecutor
One of these talking points is that the local prosecutor, District Attorney Jose Garza, is another Soros-funded politically-motivated prosecutors intent on wreaking havoc in their communities, much along the lines of New York District Attorney who is bringing a feckless prosecution against President Trump, St. Louis Circuit Attorney who sought to prosecute the McCloskeys until her entire office was removed from the case for misconduct, and Los Angeles District Attorney George Gascon whose Progressive mishandling of criminal cases led even the liberal populace of Los Angeles to seek his recall, Baltimore State’s Attorney Marilyn Mosby’s vicious and unjust prosecution of six police officers over the death of Freddie Gray, amongst many other Soros-funded prosecutorial monsters.
And I have every reason to believe that this representation of Garza is correct, and that Garza was motivated to bring Perry to trial largely for political purposes—particularly after local law enforcement investigated and concluded that Perry’s shooting of Foster was lawful.
The political motivations of Garza, however, do nothing to change the law and evidence of the trial—and those, as discussed, are more than sufficient to allow a reasonable jury to arrive at a verdict of guilty in this case.
Zimmerman and Rittenhouse were acquitted despite being politically prosecuted because the evidence was on their side. Perry may have been convicted in this likely politically motivated prosecution because in his case the evidence was contrary to self-defense.
Did Garza Commit Misconduct in Hiding Exculpatory Evidence from Grand Jury?
Another of these talking points also involves Garza, and alleges that he engaged in criminal witness tampering when he ordered a police investigator to strip out exculpatory evidence from the officer’s testimony to the grand jury. It has been reported that of about 150 Powerpoint slides the officer intended to present to the grand jury, 100 slides covering exculpatory evidence were ordered removed. (The investigator in question filed a sworn affidavit in this manner, and I’ve imbedded below for those who are interested.)
Such conduct certainly would strike most reasonable people as unfair—after all, shouldn’t the grand jury be entitled to hear both sides of the story, both the narrative of guilt and the narrative of evidence, both the incriminating evidence and the exculpatory evidence.
Perhaps surprisingly, the answer to that question is: No.
The role of a grand jury is explicitly not to hear both sides of the argument—hearing both sides of the argument is the role of the trial jury, not the grand jury. For all practical purposes, the role of the grand jury is to hear ONLY the evidence consistent with guilt, only the evidence the prosecution has to present, and then decide if even that one-sided presentation of evidence is insufficient to prove guilt at trial. If they so conclude, they return a no true bill, meaning no indictment, and therefore no trial.
As you might expect, anybody who hears only one side of an argument tends to find the only side they hear to be pretty compelling. The result is that grand juries generally return to the prosecutor what the prosecutor wants—and, of course, prosecutors generally want an indictment, so that’s what they get.
There was no obligation on the part of DA Garza to present ANY exculpatory evidence to the grand jury, and so it is not misconduct for him to decline to do so. (I note that there appears to be a bill working through the Texas legislature that would impose such an obligation, which I certainly support, but it’s not currently law.)
Now, it is true that in rare cases prosecutors are ambiguous about whether they really want an indictment, or they are using a grand jury as political cover to not bring a suspect to trial. In such a case the prosecutor, at their discretion, might present the grand jury with both sides of the story, with exculpatory as well as incriminating evidence. When a prosecutor does that, it’s a pretty strong indication that they prefer that an indictment not be returned.
This happened in the 2014 case of the Michael Brown shooting. Then St. Louis County Prosecutor Robert McCulloch presented the grand jury with both the incriminating and exculpatory evidence in the shooting death of Brown by police officer Darren Wilson—and the grand jury declined to indict the officer.
It’s worth noting, however, that this decision by McCulloch to present the Michael Brown grand jury with a balanced rendition of the facts of the shooting cost him his career. Indeed, McCulloch had been the St. Louis County Prosecutor for no less than 19 years, having come to office in 1991 and winning re-election 6 times—often unopposed, but winning by large margins when he did have an opponent.
In the next election after the grand jury’s refusal to indict in the Brown case, however, McCulloch found himself challenged by a young, relatively inexperienced attorney who would normally have had little chance to win—but in the politics of the time, and with the substantial financial backing of none other than George Soros, defeated McCulloch handily by more than 13 percentage points.
If you’re wondering if that sends a warning message to other prosecutors about presenting a grand jury with both sides of the story in politically charged cases, you’d be right.
But the Police Initially Believed Perry’s Acted in Self-Defense!
Much has also been made of the testimony of an officer early on the scene who told the jury that he did not initially arrest Perry because he perceived that Perry’s shooting of Foster might well have been in lawful self-defense.
And this is sound decision-making by the officer. If there is evidence consistent with self-defense, the officer ought to consider that evidence before making a mindless decision to subject a lawful defender to arrest and everything that comes with that arrest.
In this particular case, however, the officer’s perception of evidence consistent with self-defense was largely a misperception.
In particular, the officer based his initial conclusion of self-defense on a bullet hole in Perry’s car. The officer inferred that this bullet hole had been caused by the initial use of unlawful force against Perry, against which he defended himself in lawful self-defense.
In fact, that’s not the case, and the defense never made that argument. That’s because it was uncontroverted that Foster never fired his AK-47, so Foster could not have initially caused that bullet hole in Perry’s car, providing the justification for Perry to shoot back.
In fact, the bullet hole in Perry’s car was caused by a bystander who shot three times at the car as Perry fled the scene of the shooting. That being the case, the bullet hole in the car could have provided no justification for Perry’s shooting of Foster.
It is true that something like 24 different sets of prints were secured from the outside of Perry’s vehicle, as well as some apparent shoe prints, but slapping and kicking of a car by itself could not justify Perry’s decision to shoot dead Garrett Foster. Indeed, a claim by Perry that this slapping and kicking of his car was reasonably perceived by him as a deadly force attack, which would require breaching of vehicle, is inconsistent with Perry’s decision to lower his window when approached by Foster. It’s also noteworthy that if you look at the paired videos embedded above, while there are some people around Perry’s vehicle, he’s hardly awash in a sea of protestors–another example of how our genuinely held understanding about an event can be biased by bad information acquired through second-hand sources.
