While St. Louis — and the nation — wait for the grand jury decision on Ferguson police officer Darren Wilson in the August shooting death of Michael Brown, everyone is getting a civics lesson on the grand jury. The grand jury is an institution that originated in medieval England as a protection against the Crown and that made its way in the Fifth Amendment.
But the St. Louis County grand jury that has been hearing testimony in the death of Brown in Ferguson, is more atypical than typical. For example it:
- Lasted longer. Most criminal cases are in and out of a grand jury in a short time. Few require months of work.
- Heard more testimony. Typically an investigating police officer will present evidence to the grand jury, which wouldn’t hear all of the evidence as it has in Brown shooting.
- Heard from the potential defendant. Most defense lawyers will tell their clients not to testify before a grand jury, but Officer Wilson reportedly testified for four hours.
- Plans to release evidence. Only in extraordinary cases, such as this one, does a prosecutor consider releasing testimony and other evidence presented to the grand jury.
To help unravel what the grand jury experienced and what makes this case different, we've compiled a little explainer. Here’s how the grand jury process works.
How many citizens serve on a grand jury and how are they chosen?
Twelve citizens serve on Missouri grand juries. The presiding judge of the St. Louis County Circuit Court selects the grand jury from a randomly chosen master jury list. Peter Joy, a professor at Washington University Law School, said this "enables the presiding judge to ensure that the grand jury is representative of the community." The oath taken by the grand jurors require they promise not to be motivated by “any hatred, malice or ill will.”
Nine of the grand jurors are white and three are African-American because the pool of jurors represents St. Louis County's population, not Ferguson's alone.
Is the grand jury hearing the evidence in the Brown/Wilson case a special grand jury or a sitting grand jury that has been hearing other matters?
It is a sitting grand jury. Grand juries are chosen three times a year, on the first Monday in January, May and September. The grand jury seated in May was extended to handle the Ferguson case.
Is the grand jury proceeding secret?
Yes. It is a crime for a grand juror to disclose grand jury proceedings or evidence. However, a witness to the grand jury can come outside a grand jury room and say what he or she testified. In the past, after the grand jury had made its decision, St. Louis County Prosecuting Attorney Robert McCulloch has sometimes released information about the proceedings, and he has announced he is doing so in this case. McCulloch released grand jury materials in a decade-old case involving the police shooting of two men in a car at a Jack-in-the-Box restaurant in Berkeley.
Is the grand jury process quick?
Not in this kind of case. A run-of-the-mill felony might require less than a day, but McCulloch said the Brown/Wilson proceeding would take several weeks, and it has. He was quoted in the Wall Street Journal saying, “Absolutely everything will be presented to the grand jury. Every scrap of paper that we have. Every photograph that was taken."
Is McCulloch’s decision to present all of the evidence to the grand jury controversial?
Richard Kuhns, an emeritus professor at Washington University Law School, questioned McCulloch’s approach. “Since he presumably doesn't do this with other cases, the not-so-hidden message must be ‘don't indict.’ One more reason why McCulloch should never have been in charge of the investigation.”
Providing the grand jury with every bit of evidence is “simply a way for prosecutors to avoid responsibility for decision-making,” he said.
But David Rosen, a former federal prosecutor in police cases, disagreed. “Why wouldn’t you put in all the evidence you know of so that the jurors know what is out there?” he asked. “The biggest complaint we hear about grand juries is that it is one-sided. The prosecutor just presents his evidence. It was always my practice to let the jurors know everything about the case, good and bad. Why shouldn’t the grand jury hear evidence both ways? They are supposed to stand between the government and the citizen, so why wouldn’t we let them know all the evidence?”
Is the grand jury process open and transparent?
No. Grand jury proceedings are secret. But if the St. Louis County grand jury fails to indict Officer Wilson, McCulloch will release full transcripts and audio recordings of the grand jury proceedings, his spokesman said in September.
McCulloch had originally said he would obtain the approval of St. Louis County Circuit Court Judge Carolyn Whittington, who is supervising the grand jury, to release the court documents. Courts administrator Paul Fox had said Sunday that Whittington had not yet agreed to the release. But McCulloch decided Monday that he didn't Whittington's approval, the Post-Dispatch reported. John Hessel, an expert on municipal law and freedom of information, advised McCulloch that the grand jury transcripts would be public records if there is no indictment, the paper reported.
Ed Magee, McCulloch’s executive assistant, said in an interview in September that the prosecutor had not yet decided whether the names of the witnesses would be released along with their testimony. “I know we will be releasing the transcriptions of the testimony ... I don’t know about the names yet; we’re not sure how that is going to work.”
Grand jury proceedings often are not transcribed. Missouri law only requires transcription if a witness is given immunity for testimony or if the judge overseeing the grand jury orders transcription. But Magee confirmed that McCulloch had made a decision to transcribe and tape the proceedings.
There would be no public release of grand jury materials if Wilson is indicted for killing Brown. Instead the state’s evidence would be presented in a trial.
Does everyone think it’s a good idea to release the grand jury evidence?
One legal authority who favors immediate release of the evidence is Michael A. Wolff, dean of the Saint Louis University Law School. Wolff thinks it is important that the process be as transparent as possible.
Wolff adds that if Wilson is indicted, the judge presiding over the subsequent trial should permit it to be televised. Wolff, former chief justice of the Missouri Supreme Court, said the judge would have that authority, and he cited the 1991 trial of William Kennedy Smith in Florida as a demonstration of the value of televising trials.
Roger Goldman, an emeritus law professor at Saint Louis University, questions the plan to release grand jury transcripts in the event of no indictment.
Goldman noted that under federal rules, prosecutors would not be able to release federal grand jury transcripts. He added that there are “a couple of policy reasons why release of information … could be harmful: One, it would dissuade witnesses from coming forward in future cases if they knew what they said could be disclosed as well as scare off current potential witnesses in the Wilson case. Two, it could have an effect on potential grand jury witnesses in federal court.”
Rosen, the former federal prosecutor, said he can see the issue both ways:
“You want the public to have confidence in whatever the decision is. If you indict the officer he would get that evidence in discovery. If there is a no true bill, I can see McCulloch’s point of view that the public should have confidence in what happened before the grand jury.
“What you worry about is how are the witnesses going to feel. The people who come in have some assurance that if it doesn’t go to trial they will not be identified. Will you make people less willing to come forward?” Rosen said.
Stephen B. Higgins, a former U.S. attorney in St. Louis and partner at Thompson Coburn, said in an email that in the federal system “the notion that transcripts would be released, especially with information identifying the witness, would be antithetical to the historic investigative functions of a grand jury … And you're right about the potentially chilling effect a release would have on the process.”
But, Higgins added, he trusts McCulloch’s “professionalism and experience — if he can release transcripts under the state rules and believes it necessary to maintain public confidence in the system, then I would back off of what I just said about grand jury secrecy. But as a general rule, I think it would set a very bad precedent.”
Does a state prosecutor have to use a grand jury in all criminal cases?
No. The prosecutor could charge Wilson with a crime if the prosecutor believes there is probable cause. In that case, Wilson would have the right to a preliminary hearing in open court where there would be a chance to cross-examine witnesses. Goldman says, “Surprisingly the preliminary hearing might be better for defendant, worse for prosecution since where there is a preliminary hearing, the witnesses appear in public, the defense gets in effect a free deposition.”
McCulloch’s office says slightly less than half of the criminal cases go through grand juries. Marcia McCormick, who teaches criminal law at Saint Louis University Law School, says most of the high-level felonies in St. Louis County go through the grand jury. In addition, grand juries are almost always used in cases of alleged police brutality because they allow the prosecutor to gauge the credibility of witnesses.
Even though a grand jury is viewed as giving a prosecutor the advantage, Alex Little, a former federal prosecutor, told Vox that McCulloch appears to be using the grand jury as a “delaying tactic” that puts off justice for the Brown family.
Were the Brown family lawyers in the grand jury?
No. The only lawyer in the grand jury rooms is the prosecutor, in this case assistant prosecutors on McCulloch’s staff.
Who decides whether to indict, the grand jurors, the prosecutor or the presiding judge?
The grand jury, but the prosecutor’s views are extremely influential. Kuhns, who taught criminal procedure at Washington University Law School, said in an email:
“The prosecutor typically has de facto control over the grand jury. Except for usually minimal instructions from the judge, the prosecutor is the only person the grand jury deals with. The grand jury can decide to call witnesses on its own, but that doesn't happen often. Usually the grand jury is pretty subservient to the prosecutor. If prosecutor wants an indictment, he can almost always get it.”
Does the grand jury have to be unanimous?
No. The votes of nine members are required to find a “true bill” resulting in an indictment being “handed up.” If the grand jury determines there is no probable cause, “No True Bill” is found and the case is over.
Are there evidence limitations?
Almost none. Molly J. Walker Wilson at Saint Louis University Law School said, “It is not an adversarial proceeding — standard rules of evidence don't apply.”
Does the suspect testify?
The suspect is invited to testify but lawyers will almost always advise against it. The defense lawyer is not allowed in the grand jury room, but the potential defendant can ask to talk to the lawyer in the hallway. Wilson reportedly chose to testify, which some lawyers think was a good decision because it enabled him to present evidence that he was justified in using deadly force.
What are the possible criminal charges?
Voluntary manslaughter and second-degree murder are the most likely charges, experts say. McCormick said, “Depending on what the evidence shows, it could be second degree murder — knowingly causing death. A prosecutor could decide that the definition of voluntary manslaughter is more appropriate — knowingly causing death under a sudden passion with adequate cause (an assault on the officer).” If Wilson misjudged the need to use deadly force, his would be an "imperfect defense," lawyers say, and the less serious involuntary manslaughter charge could be returned.
What does Missouri law provide on police use of deadly force?
Missouri law gives police officers broad power to use force to make an arrest or prevent a felon’s escape. It states: “A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only …. when he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested (a) has committed or attempted to commit a felony; or (b) is attempting to escape by use of a deadly weapon; or (c) may otherwise endanger life or inflict serious physical injury unless arrested without delay.”
The law is broader than what the U.S. Supreme Court permits. The court has ruled it is unconstitutional to shoot a non-dangerous fleeing felon. But McCormick said that Wilson still could rely on the state law as a justification in his defense.
“He could say that he believed Brown was an immediate danger to people in the community because of Brown's actions in the moment and/or based on what he believed Brown had done at the convenience store. Moreover, he could say that belief was reasonable because any police officer would believe that a person who committed a forcible robbery would use force against others in order to get away. That is the argument, but it's not clear from the facts that Wilson did believe these things."
If the state prosecution fails, could a federal grand jury act?
Yes, if the attorney general decides that an important federal interest was not vindicated by the state prosecution and that there is enough evidence that Wilson intended to violated Brown’s constitutional rights.
The level of proof required in a federal prosecution is high. The government must show that an officer "willfully" deprived a suspect of a known civil right. That means the officer has to be shown to have demonstrated reckless disregard for the right.
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