Deconstructing the Grand Jury

grand juryThe tragedy that is Ferguson now distills to this: To vindicate the civil rights of one man, Michael Brown, that were allegedly violated, the civil rights of another, Darren Wilson, should have been definitely infringed.

To be sure, despite its apparent justification, there is little to celebrate in the decision not to indict Officer Wilson. Whether his actions were warranted has probably forever vanished into a fog of mixed evidence and ambiguous testimony. The profound culture of mistrust between African-Americans and police in Ferguson—as elsewhere—reflects a deep and continuing racial divide that cannot be wished or refuted away. Frustrations so deep generally do not arise from nothing.

But those who would stand the purpose of grand juries on their head—transforming them from a device meant to protect defendants to one intended to indulge the public—might do well to ask how far they want that principle to apply. Demonstrators carrying signs in the street demanding an indictment, chants insisting on the same: Do those protesting that justice is unequally administered really want it broadly administered in this way? Is that likely to vindicate the rights of those for whom they speak?

Dana Milbank of The Washington Post says prosecutor Bob McCulloch should simply have allowed “the justice system to run its course,” asking for an indictment even if prosecutors “might well have come up empty” in a jury trial. The results of a not-guilty verdict, he suggests, would have been easier to accept than the decision not to indict.

But the grand jury is an essential part of the course of justice, and its purpose is not to satiate public appetites or satisfy public skepticism. It is to protect defendants, to open another safety valve for the accused.

“So tender is the law of England of the lives of the subjects,” Blackstone explains, that two juries—one petit, one grand—must concur on a defendant’s culpability. The Fifth Amendment thus places the right to a grand jury proceeding alongside double jeopardy and self-incrimination as sacred protections of defendants, not rights of the public. Justice Story, in his Commentaries, says the grand jury is “a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.” What Milbank describes, by contrast, would be a jury trial as show trial in the literal sense of the term: one staged not to find truth but to make a political point.

It is certainly true that obtaining grand jury indictments is no trick for the determined prosecutor. It may be true that McCulloch obtains them with ample ease in other cases. But that would seem to be the very sort of problem those protesting unequal justice ought to want to confront, not exploit.

That McCulloch, whose father was a police officer killed in the line of duty, has never obtained an indictment against a police officer in a case like this does indeed raise questions. But this case was brought against Darren Wilson, not the police as a phenomenon, and no one has suggested the evidence against Wilson was sufficiently clear (the grand jury’s standard is “true”) to warrant exposing the officer—or, equally important, others so situated, which is to say others who are the targets of public outrage—to the costs and hazards of a trial. If McCulloch presented the cautious case for indicting Wilson, the question ought to be why he does not do so for others in the crosshairs.

The alternative is to see the grand jury as what the protestors would have it become: a political rather than a legal device, one according to which individuals are indicted, or not, based on the level of public outrage their cases stoke. If the protestors are correct about the level of racial dysfunction in society, this portends poorly for those they seek to protect.

What, then, of Michael Brown? The shooting deaths of 18-year-olds are tragedies tout court, whether their hands are raised in a posture of self-defense, as Brown’s supporters maintain, or in one of attack, as Officer Wilson contends. There is, again, little to celebrate in the decision not to indict, save for the grand jury’s forbearance under immense pressure. But there would have been no cause for rejoicing, either, in the rioters recently raging in protest instead celebrating, in the same streets, an indictment that would have plainly been returned under pressure.

Their suggestion—and it is not theirs alone; it pervades political discourse on both sides—that victims are somehow “due” justice in the form of punishments of those they accuse is as perilous as it is seductive. There is a reason prosecutions are styled “the people,” not the victim personally, versus the defendant.

To conceive of prosecutions as the justice due victims risks shifting rights from those still entitled to hold them—the accused—to those whose essential relevant right, which was not to be victimized, has already been irrevocably denied. It is a moral certainty that the rush to dispense this supposed entitlement to another’s punishment will eventuate in unjust convictions, because this conception extinguishes the objectivity of the justice system, whose duty becomes not to judge but to convict.

That system stands accused of unjustly swallowing up the lives of enough young men. This is a recipe for it consuming more. That does no justice, as if justice can be retrospectively done, to the tragedy that unfolded in Ferguson.

Reader Discussion

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on December 02, 2014 at 11:36:02 am

As the U.S. Supreme Court held in United States v. Williams, 504 U.S. 36 (1992): "It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. See United States v. Calandra, 414 U. S., at 343. That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side. As Blackstone described the prevailing practice in 18th century England, the grand jury was 'only to hear evidence on behalf of the prosecution[,] for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined.' 4 W. Blackstone, Commentaries 300 (1769); see also 2 M. Hale, Pleas of the Crown 157 (1st Am. ed. 1847). So also in the United States. According to the description of an early American court, three years before the Fifth Amendment was ratified, it is the grand jury's function not 'to enquire . . . upon what foundation [the charge may be] denied,' or otherwise to try the suspect's defenses, but only to examine 'upon what foundation [the charge] is made' by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (Philadelphia Oyer and Terminer 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify, or to have exculpatory evidence presented. See 2 Hale, supra, at 157; United States ex rel. McCann v. Thompson, 144 F. 2d 604, 605-606 (CA2), cert. denied, 323 U.S. 790 (1944)."

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Image of Sergio Vazquez, Esq.
Sergio Vazquez, Esq.
on December 03, 2014 at 08:26:51 am

I am not a lawyer and I don't cite case law. As a matter of Justice and our God given rights I believe there is a common law that puts the trial by grand jury and the court room jury outside of the prosecutors control. This is a God given right and should be completely independent of all case law. Each time a complaint is made the jury will decide the justice of the complaint.
Lawyers and Judges are so blinded by their special "law" entitlement that they try to impose their will on the jury. Deciding what the jury will see, hear, and do is an abuse of their power. The jury whether it is a grand jury or a trial jury has the right to see and hear anything they want, and do things to ensure they see and hear all the facts of the complaint. I hear lip service to this but in practice I see the State using rules and procedures to limit what the jury can see and hear and do.
This is where the people of Ferguson smell a rat. All juries must be selected by random lot from the voter roles and they should be charged with absolute power over the procedures they want to use to come to a verdict. The state is at their mercy.

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Image of Karl McGaugh
Karl McGaugh
on December 03, 2014 at 18:27:52 pm


In order for the Grand Jury to determine whether there exists probable cause that has been committed in a self-defense case, they must do more than merely determine whether there exists probable cause as to each and every element of the criminal charge. This they must do, surely, because if they do not the Grand Jury will be instructed to not indict.

But in a case involving self-defense, probable cause on each and every element of the criminal charge is necessary but not sufficient for an indictment.

Why? Because probable cause could exist on each and every element of the criminal charge and yet probable cause of a crime necessary to support an indictment still be lacking.

Why? Because self-defense eliminates the criminality of the otherwise criminal underlying acts.

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Image of jeremiah
on December 04, 2014 at 00:58:07 am

Everyone understands- even those who will not admit it- that had this not been a policeman there damn well would have been an indictment! Black or white!

These are cases of the State protecting their own against the rest of us.

The State had the burden to prove in a court of law, beyond reasonable doubt that Brown committed a crime. If so, then the punishment should fit the crime committed.

Instead, the State is short-circulating justice by allowing cops to act as judge jury and executioner. They do not receive training in any of that jurisprudence. Instead they receive military kill training and itchy hair trigger training. Civil rights of the accused do not enter into it.

As military training, all non-State employees are enemy combatants who must be quickly dispatched with overwhelming force. This training is federal. Asking the feds to fix it is like asking Obama to stop drone-striking innocent civilians every Tuesday.

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Labor equals zero

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