Grand juries have gotten a bad reputation following the decisions of two different panels -- one in New York and one in Missouri -- not to bring charges against police officers who killed unarmed civilians. It's an unenviable situation for the citizen members of these panels: they've been accused of racial bias and preferential treatment of police officers, but bound by the secrecy rules of the grand jury, have been unable to explain their decisions. Recently, however, one of the grand jurors who voted not to indict Ferguson Police Officer Michael Wilson announced he was suing the prosecutor for permission to discuss what happened during the presentation of that case.
I hope he wins this suit because, at this point, the secrecy of the grand jury in Ferguson is serving no other purpose than to protect the prosecutors. I'm almost certain that allowing the grand juror to discuss his own experience will reveal that the manner in which the prosecutors presented their evidence was a significant deviation from the norm done with a specific objective: To discourage the grand jury from bringing charges against Officer Wilson.
As a former prosecutor, I've probably presented over a hundred cases to grand juries, so let me describe how the process should -- and almost always does -- work.
A grand jury itself is typically composed of 12 to 18 citizens, but prosecutors run the whole show. At the beginning of the presentation of their case, prosecutors recommend specific charges. They give opening statements, explaining what evidence will support those charges. Prosecutors decide which witnesses to call, and what physical evidence to present. They alone question the witnesses although grand jurors can ask follow-up questions. And at the end, prosecutors give closing statements, arguing to the grand jury how the evidence it heard is sufficient to charge the defendant as recommended.
There are no defense attorneys to challenge the state's witnesses or present evidence on the defendant's behalf. There are no judges, and the rules that control how evidence is admitted at trial are relaxed. A grand jury presentation is also typically short -- anywhere from a half-hour to half a day for a particularly complicated case. They are supposed to be streamlined, focusing on the state's most persuasive evidence. With this type of one-sided presentation, how could any grand jury fail to bring charges? Answer: they don't.
So what happened in Ferguson? The prosecutors deviated from the procedure I've just described. Rather than a carefully-tailored presentation that showcased the state's most persuasive evidence, the prosecutors threw an overwhelming amount of information at the grand jury over the course of months, not days, and then threw up their hands and asked the grand jury to figure it all out. They didn't advocate for specific charges to be brought against Officer Wilson or provide a framework to guide the grand jury's deliberation.
There's a term for the procedure the Missouri prosecutors used: it's called an "investigative" grand jury. Technically, a grand jury is authorized not only to bring charges, but to conduct investigations by subpoenaing witnesses and evidence. Very rarely used, an investigative grand jury, by definition, is not organized around proving specific charges. This makes it the perfect vehicle for prosecutors who don't want to charge a defendant, but also don't care to be held personally responsible for that decision.
Prosecutors themselves have the authority to decline to file charges in any case -- there's no requirement to present a case to a grand jury -- but then public anger is focused solely on them. If they convene an investigative grand jury, however, the blame shifts to a group of citizens who are bound by secrecy rules and can't speak out to explain what happened or to defend their decision. Is it any wonder that the Ferguson prosecutor is opposing the grand juror's lawsuit to be allowed to speak publicly about his experience?
Since I'm a criminal defense attorney, you may be surprised that I'm criticizing a procedure that resulted in defendants not getting charged. But the legitimacy of our criminal justice system is compromised when everyone is not treated equally, and not subject to the same procedures. Also, there's something morally offensive about prosecutors scapegoating a group of citizens who were just trying to do their civic duty.
I understand that prosecutors have an allegiance with police officers, and I certainly don't fault them for that. It's a very understandable product of our adversarial system and of human nature. Prosecutors are pitted against both public and private attorneys in every courtroom battle, and their allies are police officers. But this kind of bias needs to be acknowledged so that appropriate steps can be taken -- like the appointment of a special prosecutor who has no such allegiance -- not hidden behind the reputations of the citizens who serve on our grand juries.
Marcelle McDannel has been working in criminal law for almost two decades, both as a prosecutor and 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.