Alaska has one of the most generous self-defense statutes in the country. According to our laws, you can kill someone who has threatened you with deadly force even if you could otherwise get away without further incident. There is no duty to retreat, not just at home but in any place you have a legal right to be. But if you're not a police officer, do you know where you will end up if you kill someone in self-defense? On trial for murder.
You have almost no chance of a grand jury refusing to charge you. Prosecutors do not use grand juries to screen cases involving everyday folks. They use grand juries to charge specific crimes they've already decided fit the case well before the first witness is called. Any prosecutor with more than a few months of experience will admit that they know how to present evidence to convince the grand jury to return an indictment.
I pointed out in my last column how the prosecutors in Ferguson deviated from normal grand jury procedures by not recommending any charges and not presenting evidence in such a manner as to prove specific crimes. I suggested that this deviation wasn't motivated by valid policy concerns but by prosecutors using the grand jury for political cover.
In a response published over the weekend, Val Van Brocklin, who, according to her website, is a former prosecutor who now gives motivational speeches to law enforcement groups as an "indisputable master of enter-train-ment," took issue with that characterization. She argued that, because the Ferguson case attracted an intense degree of media scrutiny, the prosecutors were justified in presenting the case to the grand jury in an extraordinary manner.
But using different grand jury procedures when police officers kill -- especially in high-profile cases -- creates a stark double standard between law enforcement and the rest of us. As a defense attorney, many times I've found myself in the position of pleading with prosecutors to drop murder cases against clients who have killed in self-defense. It never works. I'm always told the same thing: "Let's let a jury decide."
Last year, I represented a client -- let's call him Joe -- who, in my opinion, had a very clear-cut self-defense case. He shot a man who was pointing a gun at him from a distance of about five feet. The guy was running toward him while his friend was yelling, "Pull, pull!" as in "Pull the trigger."
But when the prosecutors brought Joe's case to the grand jury, unlike the Ferguson case, they didn't even tell the grand jury that finding Joe acted in self-defense was an option. In addition to deciding what evidence to present, prosecutors also serve as legal advisers to the grand jury. I filed a motion with the Superior Court protesting the prosecutor's decision to withhold an instruction on self-defense but I lost. The court agreed with the prosecution: Let a jury decide.
For my clients, this is a harsh way to resolve cases. They can't afford the high bail typically set in murder cases, so they await trial in jail. Joe had other co-defendants joined to his case for trial. By the time all of the motions had been filed and all four attorneys coordinated their schedules to allow for two months of trial, more than two years passed before a jury finally acquitted him of murder. I can't even guess the number of years the stress of the trial itself aged him.
But from a public policy standpoint, there are a lot of advantages to letting a trial jury make this decision. A self-defense murder case necessarily entails an admission that the defendant killed another human being. The defense doesn't contest the fact that this act occurred; it focuses on proving the killing was done under such circumstances that the community will excuse it. What better body to set that community standard than a trial jury selected for its impartiality with input from both the prosecution and defense?
Our system of justice is founded on the notion that an adversarial contest is ideal for ferreting out the truth. One side presents a witness and the other side is permitted to challenge that witness' testimony through cross-examination, which is, according to the Supreme Court, "the greatest legal engine ever invented for the discovery of truth." Only trial witnesses, not those who appear before the grand jury, are subjected to this truth-divining engine.
Should these public policy objectives apply to police as well? Or should there be a different standard for officers who kill? Watching the police in New York City refuse to enforce the law for weeks because they're mad at the mayor, I see any double standard as dangerous -- particularly when applied to people already authorized to use force against their fellow citizens. It suggests to those with this special power that they are above the laws they're authorized to enforce, and that's not the way I would like to see them motivated.
Marcelle McDannel has been working in criminal law for almost two decades, both as a prosecutor and as a criminal defense attorney. She currently practices criminal defense statewide. Contact her at marcelle(at)alaskadispatch.com.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.