Ferguson After Grand Jury
The killing of Michael Brown in Ferguson, Missouri, has been in the media forefront since the tragic shooting in August 2014 but it gained new traction recently when the Ferguson Grand Jury decided not to indict police officer Darren Wilson. Traditionally, a grand jury hearing is a one-sided presentation of the facts and evidence by the prosecutor. Not here, however: District Attorney Robert McCulloch decided to let the grand jury hear all the evidence, including a narrative statement by the target. Why? Take a moment to explore this question and read Reflecting on the Ferguson Grand Jury by Joel Cohen & Bennett L. Gershman.
The central irony in this case is that the familiar abuses in the grand jury process typically occur when prosecutors refuse to present all of the evidence and, indeed, hide evidence that might have led a grand jury to refuse to indict – to vote a “no true bill.” What is particularly odd about the Ferguson Grand Jury presentation is the complaint that by his decision to present all of the evidence, McCulloch actually dis-served the prosecution. Why did McCulloch take these steps? We do not know, and we are likely never to know.
I am grateful for this post, which raises important issues about grand jury proceedings in general and about Prosecutor McCulloch’s conduct of proceedings in this case.
The post raises extremely important points about a prosecutor’s responsibilities that fall within the broad concept of what is typically considered prosecutorial discretion – a concept that in a high profile case such as the one in consideration confronts a prosecutor with the need to make crucial decisions in extremely challenging circumstances. While prosecutors generally are well trained in the law, in my experience most do not have any specific training on public information issues such as those presented in this case.
In a case such as this one that rightly has drawn national attention to issues of race and police conduct, it seems that a prosecutor must consider not only his or her own decision about the likely merits of a case but also must consider how to proceed – whether through a grand jury proceeding or through a trial – in a way that will provide the concerned public with facts sufficient for an informed and reasoned decision about the case.
Proceeding to trial after securing an indictment in the usual one-sided procedure before a grand jury would make available to the public more information than it would have through the disclosure of grand jury proceedings alone. Trial testimony would be more extensive and would be subjected to cross-examination, and we would have a jury’s verdict, issued after proper instruction. That would undoubtedly be good. On the other hand, proceeding to trial subjects a defendant to severe emotional, time, and other costs.
The authors of the post have devoted considerable care to presenting the issues in this emotionally charged case in a fair and balanced way that presents important questions of fact and law that deserve thoughtful consideration. I thank them.