This Essay argues that prosecutors should not allow grand juries to consider indicting defendants whom the prosecutors themselves believe should not be indicted. To illustrate the problems with this practice, this Essay uses the example of St. Louis County Prosecutor Robert P. McCulloch – who encouraged deliberations by the grand jury that heard evidence concerning the shooting death of Michael Brown in Ferguson, Missouri, despite personally believing that Brown’s killer, police officer Darren Wilson, should not be indicted. The arguments against allowing grand juries to conduct such needless deliberations include (1) the exercise wastes the time of citizens forced to serve on grand juries; (2) the deliberations might, despite the prosecutor’s wishes, result in indictments contrary to the interests of justice; and (3) by “passing the buck” to the grand jury, the prosecutor evades accountability for his own decisions.
NY's top judge believes that the judiciary should play a greater role in the grand jury process when police are accused of killing a civilian. I personally think that grand jurors should be provided their own counsel.
Apparently one of the Ferguson, Missouri grand jurors who heard evidence about the killing of Michael Brown by law enforcement wants to talk about the case but can't without violating the law. Thus, this former grand juror with the help of the ACLU has filed a lawsuit (Grand Juror Doe v. Robert McCullough) against the local prosecutor. According to the lawsuit, the grand juror seeks a declaratory judgment that Missouri's laws criminalizing speech by the grand juror about his/her experience is unconstitutional.
Like most states that use the grand jury, Missouri prohibits grand jurors from talking about evidence heard by the grand jury. Historically, grand jurors were prevented from disclosing evidence in order to maintain secrecy of the investigation and to protect the privacy of those who appeared before the grand jury but were never charged with a crime.
Here is the Missouri statute on the topic.
540.320. No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto; nor shall he disclose the fact of any indictment having been found against any person for a felony, not in actual confinement, until the defendant shall have been arrested thereon. Any juror violating the provisions of this section shall be deemed guilty of a class A misdemeanor.
The history of the Grand Jury in the Anglo-American legal system is briefly sketched in the context of its role as an arbiter of control of police violence and illegal behavior. The nature of charging of police with crimes associated with shooting civilians, especially minorities and the ethnic and gender makeup of Grand Juries is considered as a factor. The cost of liability to cities from police shoots is addressed in the context of the benefits of professional police services versus alternatives.
In light of the recent negative attention received by grand juries, there has been a call by some to abolish them. While states are not required by the U.S. Constitution to use a grand jury, the federal government is. Thus, absent amending the constitution, always a dangerous proposition, grand juries must be used for all felony crimes unless the defendat waives his right to a grand jury.
Rather than abolish grand juries, I think we should work on improving them. For example, I have long advocated giving grand jurors their own legal advisor.
In light of the fact that the Ferguson grand jury is likely to render its decision in the near future, I thought I would offer some links to sources that provide background information on grand juries.
As of late, Texas grand juries have been under a lot of criticism so much so that State Senator John Whitmire has introduced legislation (SB 135) to modify how grand jurors are selected. If SB 135 becomes law, district judges would select grand jury panels instead of a commissioner. Many felt that the panels selected by commissioners were too homogeneous.