This Article replies briefly to the robust response that Professor Frank O. Bowman III submitted in answer to my earlier contribution to the Missouri Law Review’s symposium issue concerning events in Ferguson, Missouri. Without denying the technical accuracy of a point Professor Bowman raises concerning grand jury procedures (distinguishing between a “true bill” and a valid indictment), I dispute whether the distinction can support all of the weight placed upon it. I also dispute an empirical claim made by Professor Bowman concerning whether grand jury deliberations in sensational cases boost public confidence in the justice system and whether dispensing with the ritual — only in cases where the prosecutor believes at the close of evidence that no indictment should be brought — would create risks to public safety. Finally, I take a moment to clarify what I did — and what I did not — argue in my earlier Article.
Here is the latest example of a state attempting to improve how grand juries deal with officer-involved shootings. In this case it is Georgia which recently passed HB 941. This new bill, which awaits the governor's signature, makes the following changes:
(1) Limits the presence of law enforcement in the grand jury room
(2) Allows law enforcement to be cross examined by the prosecutor or grand jurors after they testify
(3) Requires the grand jury to issue a public report if it fails to indict
Following a small but growing national trend, Hennepin County has decided to stop sending officer involved shootings to grand juries. The decision on whether to indict police officers who were involved in shootings will now be made by prosecutors. To learn more about this change go here.
The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony.
In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not extend to the witnesses themselves. Only persons performing an “official function” before the grand jury are typically covered by the oath of secrecy. Absent a contract or court order, grand jury witnesses are free to talk with each other and to the media. Nevertheless, prosecutors often seek to handcuff grand jurywitnesses in talking to others about their testimony by drafting one-sided cooperation agreements that impose obligations of confidentiality on grand jurywitnesses in exchange for charging or sentencing concessions. Courts on occasion also impose gag orders on grand jury witnesses as part of formal immunity orders. In this article, the author argues that such efforts by prosecutors and courts to impose secrecy obligations on grand jury witnesses violate attorney discipline rules and the First Amendment. As importantly, they impede the target’s access to information essential to enable him to marshal a defense, thus undermining the grand jury’s historic function as a shield against unfounded prosecutions.
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.