Ferguson and the Prosecutor’s Approach to the Grand Jury

Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below.

Grand jury basics. A grand jury is a group of citizens that decides whether there is probable cause to indict individuals suspected of crimes. Sometimes a grand jury considers cases where no charges have been brought yet – where the indictment would be the first charging document in the case — and sometimes a grand jury considers cases where preliminary charges have already been brought by officers or prosecutors, subject to later review by the grand jury.

Grand juries normally consider cases when prosecutors submit the cases to them. (In some states, like North Carolina, grand juries occasionally identify cases on their own using a procedure called a presentment.) Historically, the grand jury served “a vital function in providing for a body of citizens that acts as a check on prosecutorial power.” United States v. Cotton, 535 U.S. 625 (2002). In other words, if a prosecutor were overzealous, the grand jury could rein the prosecutor in by refusing to issue indictments.

In recent years, commentators have noted that most grand juries issue indictments in virtually every case they consider. (The Charlotte Observer ran this story about the rarity of North Carolina grand juries declining to return indictments.) This may reflect the fact that prosecutors are careful to pursue only cases in which probable cause is present. But it may also be due in part to the fact that grand juries normally hear only the evidence and witnesses selected by the prosecutor. There is no constitutional requirement that exculpatory evidence be presented to the grand jury, United States v. Williams, 504 U.S. 36 (1992), and it often isn’t.

Grand jury details. The details of grand jury operation vary somewhat from jurisdiction to jurisdiction. In North Carolina, grand juries have between 12 and 18 members, and 12 votes are required to indict. G.S. 15A-621. Federal grand juries have between 16 and 23 members, with 12 votes required to indict. Fed. R. Crim. P. 6. In Missouri, grand juries are comprised of 12 members, with 9 votes required to indict.

Jurisdictions also vary regarding the role of the prosecutor in grand jury proceedings. In North Carolina, prosecutors submit cases to the grand jury along with draft indictments but are not actually present in the grand jury room. G.S. 15A-623. Prosecutors are present and examine witnesses during federal grand jury proceedings. Fed. R. Crim. P. 6. The Huffington Post reports here that prosecutors are also present and elicit evidence in Missouri grand jury proceedings.

How this case was presented. The Ferguson case was not presented to the grand jury in the usual brief manner. Instead, the grand jury met for 70 hours over 25 days in order to hear from virtually every available witness, and the prosecutor declined to recommend any particular charge or charges. The Washington Post notes here that this approach is atypical, but is sometimes used in high-profile, controversial cases. A negative spin on the tactic is that prosecutors use it to avoid making tough charging decisions in difficult cases, instead shifting the responsibility to the grand jury. A positive spin on it is that prosecutors use it to ensure that any charging decision in such a case is based on an unusually deep evaluation of the evidence and reflects the voice and values of the community. The approach is used at times in North Carolina as well as in Missouri, and I imagine it is used elsewhere as well.

Criticism of the Missouri prosecutor. Some have criticized the Missouri prosecutor for choosing to present all the evidence to the grand jury, rather than only evidence supporting probable cause to indict Officer Wilson. An example of such criticism by a law professor and a defense attorney is here.

Why that criticism isn’t fair. It’s true that the prosecutor’s approach to this case differs from the rubber-stamp approach used in most criminal cases. But this case isn’t like most criminal cases. First, in many cases, the evidence of guilt is overwhelming and the charging decision is relatively easy. That’s not the case here, where there apparently was substantial evidence supporting Officer Wilson’s claim that he acted in self-defense. As the New York Times reported:

The fact that at least nine members of the 12-member panel could not agree to indict the officer indicates that they accepted the narrative of self-defense put forth by Officer Wilson in his voluntary, four hours of testimony before the grand jury. Mr. McCulloch, in his summary of the months of testimony, said it was supported by the most reliable eyewitness accounts — from African-Americans in the vicinity of the shooting — as well as physical evidence and the consistent results of three autopsies.

It strikes me as entirely appropriate to handle doubtful cases more carefully than clear ones, and it makes no sense to suggest that every time a prosecutor can cherry-pick a set of witnesses that would support probable cause, he or she must or should do so even if on balance the evidence is more consistent with innocence.

Second, this case attracted far more community interest and controversy than most criminal cases do. Given the sensitivity of the case, it seems reasonable to use a process that maximizes community involvement at an early stage. The prosecutor has also made the information considered by the grand jury available to the public in the interest of transparency. That’s not usual, either, but also seems appropriate given the level of public interest.

Third, some of the criticism of the prosecutor seems to me to be based on a faulty assumption. The assumption is that the prosecutor gave Officer Wilson more favorable treatment than other suspects receive. The assumption is based on the fact that most suspects don’t get a full evidence review at the grand jury stage. But it seems to me equally plausible to argue that the prosecutor gave Officer Wilson less favorable treatment than other suspects receive, by requiring him to go through the grand jury process even though the prosecutor may well have believed that the evidence supported self-defense and the Officer Wilson likely committed no crime. In other words, one could argue that the prosecutor should not have submitted the case to the grand jury at all, and instead should simply have announced that the evidence did not support criminal charges. Where one could reasonably argue both that a prosecutor treated a suspect favorably and that the prosecutor treated the suspect unfavorably, perhaps the prosecutor simply treated the suspect fairly.

Concluding thoughts. None of the foregoing should be construed as an opinion about the substance of the grand jury’s decision. I’m not familiar enough with the evidence to have a view, though I am generally disinclined to second-guess the work of a group of citizens who spent so long looking carefully at the case.

Finally, note that the case isn’t over yet. As far as state criminal charges go, it probably is: although it is generally legally permissible to resubmit a case to a second grand jury, the Missouri prosecutor appears to have no intention of doing so. However, federal charges are still possible, as is a civil lawsuit.