The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Michael Brown grand jury has spoken, declining to return charges against Officer Darren Wilson. The evidence that the grand jury reviewed has made available to the public and can be found here. Since I haven't yet had an opportunity to review the voluminous testimony, in this post I discuss not substance, but procedure. Contrary to the complaints of some critics, the grand jury process was clearly fair.
Prosecuting Attorney Robert P. McCulloch described the process that he used. The grand jury was one that a judge had previously selected, well before the shooting occurred. After the shooting, the grand jurors were asked to extend their service to hear the evidence. Prosecutors then called before the grand jury everyone they could that had evidence relevant to the case. The St. Louis Post-Dispatch summarized the process neatly:
The jurors—seven men, five women; nine whites, three blacks—did a job they couldn't have dreamed they'd be doing in May, a job that none of them signed up for. They listened to two assistant prosecutors present physical evidence gathered by police investigators. They listened to Officer Wilson's account of what happened. They listened to some 60 witnesses. They were instructed in what Missouri law says about what's needed to bring various categories of homicide charges against a cop.
After this process, the grand jury decided not to return an indictment. Obviously not everyone agrees with the substance of the decision. But let's consider the objections to the process. None of them hold water.
1. Using a Grand Jury Deviated from Normal Process.
A day before the grand jury's decision was announced, Michael Brown's family attorney raised the objection that the grand jury process was unfair because it was deviation from the normal process. "When you think about it, if this prosecutor is saying we're just going to be fair, we're not going to recommend any charges, that's different from anything he's done in his past 28 years with grand juries," attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation—leaving the issue up to the grand jurors. But it is hard to understand how this had any ultimate bearing on the outcome. Of course, if McCulloch's recommendation was against filing charges, then he would never have gone to the grand jury in a normal case. And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point.
2. The Grand Jury Took Too Long.
Remarkably some critics have said that the grand jury took too long to reach its decision. For example, several days before the announcement, the Rev. Al Sharpton said "[t]here's no reason the grand jury should be taking this long. It is very suspect to us that the grand jur[y] . . . appear[s] to be improperly expanded to where it is about to prove or disprove the accused rather than seeing if there is probable cause to go to trial. That is not proper use of the grand jury."
It's hard to take this objection seriously. Obviously to review the number of witnesses that the grand jury did required considerable time. One can only imagine what critics might have said if the grand jury had made a decision more rapidly—without hearing all the evidence. Moreover, it is interesting that those (like Rev. Sharpton) who criticize the state process for taking too long have not also criticized the parallel federal investigation for taking too long.
3. The Grand Jury Got Too Much Evidence.
Perhaps the most remarkably criticism that has been made about the process is that the grand jury got too much evidence. Raul Reyes in an op-ed on the CNN's website writes: "By dumping so much evidence on the grand jury, McCulloch may have overwhelmed them and led them to the wrong conclusion. In the process, he's opened himself to charges that he was acting to protect Wilson." File this criticism under the heading that no good deed goes unpunished. It takes a strength of the process—that the grand jury got all relevant information—and tries to manufacture a weakness. Of course, criminal juries regularly evaluate lots of information in multi-week trials involving far more information than the grand jury had in this case.
4. The Grand Jury Operated in Secret.
Some critics have criticized the grand jury because it operated outside of public view. For example, Susan McGraugh, a supervisor of the Criminal Defense Clinic at the Saint Louis University School of Law, complained before the announcement that "[i]t's really a secret process . . . . At a time when there's a lot of discussion going on about whether or not police officers and the way they operate are transparent, it really lends itself to these allegations of conspiracy between the police department and the prosecutor." But grand jury secrecy is a well-established part of the investigative process—and required by Missouri law—for obvious reasons. Operating in secret, a grand jury can collect evidence and test the memory of witnesses against that evidence. If the grand jury operated openly, then it would be easy for witnesses to tailor their testimony to what other witnesses had said, making it difficult to determine the truth. And to extent that the objection is that police and prosecutors might have "conspired" together, if anything the grand jury would have served as a check on that process. In this case, for example, the grand jurors apparently asked the prosecutors to bring witnesses and information before then. Here again, it is hard to take the objection seriously, particularly when (as discussed below) the information that the grand jury received has now all been made public.
5. The Grand Jury Was Exposed to Pressure.
Other critics have argued that the grand jury was exposed to pressure, because when it went home each night after hearing evidence, it was aware of community unrest and other extraneous factors that might have lead it to not indict. But, if anything, the easy course for the grand jurors to have taken would have been to return at least some charge against Officer Wilson, such as a split-the-difference charge like involuntary manslaughter. A grand jury verdict in the face of considerable political pressure to charge is a demonstration of a commitment to the rule of law—something to be celebrated rather than condemned.
6. The Grand Jury Did Something That Grand Juries Ordinarily Don't Do.
Ben Caselman at The Huffington Post has an objection styled as a factoid that "it's incredibly rare for a grand jury to do what Ferguson's just did." He reports that in 2010, federal prosecutors sought charges in 162,000 federal cases, and yet grand juries declined to return an indictment in only 11 of them. This point confuses apples with oranges. It take as the apples a pool of cases where federal prosecutors had already screened the evidence for probable cause (or, more likely, reasonable likelihood of success at trial—see the next point below). Hopefully, if federal prosecutors are doing their jobs well, the number of these cases in which probable cause does not exist should be something close to 0%—as Caselman reports is the case. But Caselman then compares these apples to the orange of this case—a situation where a grand jury is investigating with no assurance that any criminal conduct is present. Obviously an investigation into a possible crime is never a sure thing—particularly in the area of police shootings, where the law gives officers some leeway for making split second decisions. The difference in the outcome with the Michael Brown investigative grand jury from a routine federal prosecution is hardly surprising.
7. The Grand Jury Misunderstood the Standard of Proof.
Some critics have alleged that the grand jury misunderstood (or was misinformed) about the "probable cause" standard for returning an indictment. But this grand jury was one that had already evaluated many criminal cases and thus would have had significant experience in applying the probable cause standard. Moreover, the dubiousness about whether the relatively low standard of probable cause was met in this case casts serious doubt on the viability of prosecuting Darren Wilson at trial. Indeed, if probable cause is debatable, ordinarily prosecutors do not file charges—even if they believe they can meet that minimal standard. For example, the National District Attorney's Association recommends, as part of its standards for responsible prosecution, that "[a] prosecutor should file charges that he or she believes adequately encompass the accused's criminal activity and which he or she reasonably believes can be substantiated by admissible evidence at trial." If the grand jury's decision about probable cause was even a close call, charges would not ordinarily be filed—should not be filed.
8. Robert McCulloch was Biased and Should Have Recused Himself.
The ad hominem argument that Robert McCulloch should have recused himself has resurfaced in the wake of the grand jury's decision. For example, Raul Reyes wrote on CNN's website that "[f]or the sake of impartiality, McCulloch should have let a special prosecutor take over the case," explaining that McCulloch's father was a police officer who, long ago, was shot in a shootout. For this criticism to have any bite, it would be necessary to take the next step and show how an "unbiased" prosecutor would have done something differently than McCulloch—a fact that seems dubious given the extensive evidence that was presented to the grand jury. In any event, the recuse argument lacks merit, as I explained several months ago.
9. The Grand Jury Evidence Shouldn't Be Released.
Releasing the evidence that the grand jury heard seems to be desirable, as it increases the transparency of the process. But some critics have said that this is unfair that the evidence was released in this case. To be sure, a public policy question lurks about whether it generally makes sense to release grand jury information to the public, as this may make potential witnesses less likely to come forward in future cases. But for this particular decision, it is hard to see how releasing information after the grand jury's decision somehow casts doubt on what it did earlier. And contrary to some suggestions, release of grand jury information has precedent in St. Louis County, as (according to St. Louis public radio) "in the past, after [a] grand jury had made its decision, St. Louis County Prosecuting Attorney Robert McCulloch has sometimes released information about the proceedings . . . . McCulloch [previously] 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."
In short, it is hard to see any valid objection to the grand jury procedures followed in this case. But there remains the important substantive question: Did the grand jury get it right—that is, was there insufficient evidence to indict? A fair answer to that question can only come from reading the testimony of 60 witnesses, something that critics of the grand jury's decision have obviously not yet bothered to do. Yesterday I wondered whether the facts before the grand jury really mattered to some of the more vocal supporters of Michael Brown. Today I think it is becoming increasing clear that they don't. For too many people, the issue of whether to indict Officer Darren Wilson was never about the process employed or the evidence collected. But fortunately, the prosecutors and the grand jury took a different tack.