Professors Fagan and Harcourt Provide Facts on Grand Jury Practice In Light of Ferguson Decision

 

By Professors Jeffrey Fagan and Bernard E. Harcourt
Columbia Law School

 

 

Grand jury practice is determined on a state-by-state basis. The U.S. Constitutional right to a grand jury indictment in a felony case, included in the Fifth Amendment,[1] has not been incorporated as to the states and thus does not apply to state prosecutions. Many state constitutions require a grand jury indictment in certain cases and specify the powers of a grand jury. The practices of grand juries thus vary by state and federal jurisdictions.[2]

 

About half the states require a grand jury indictment for prosecution in felony cases. In those states that do not require a grand jury indictment, cases will generally proceed on the basis of an information filed by the prosecutor. This becomes the charging instrument. As a general matter, prosecutors will try to avoid presenting a case to a grand jury when possible in order to avoid creating testimony that can be used to cross-examine a witness at trial, unless the prosecutor is trying to use the grand jury as a way to develop evidence for a prosecution. In controversial cases, state law will often allow the appointment of a special or independent prosecutor.

 

Grand juries are standing juries, drawn from the regular jury pool, ready to hear evidence presented by prosecutors.  Rules and procedures vary by jurisdiction.  Their size ranges from 23 (federal) to 12 (Missouri).  Grand juries do not always need to be unanimous.  In Missouri, for instance, 9 of 12 grand jurors can return an indictment. Grand juries will often sit for weeks at a time and may hear dozens of potential cases.

 

Grand jury proceedings are closed to the public and to the media, as well as to the targets of the investigation and their counsel. Generally, the only persons in the grand jury room are the jurors, the prosecutors, and the witness who is called. Most often, the practice is for the prosecutor to preside over the process without a judge in the grand jury room. The prosecutor typically instructs the jury on the law.  

 

Generally, grand juries will issue indictments in most if not all cases. The standard for indictment is probable cause.  In the context of the grand jury, the Supreme Court has stated, “Probable cause, we have often told litigants, is not a high bar: It requires only the ‘kind of “fair probability” on which ‘reasonable and prudent [people,] not legal technicians, act.’”[3] 

  

The grand jury process is now so routinized in most state jurisdictions that it has become a pro forma proceeding to deliver an indictment for a prosecutor. It is for this reason that most lawyers say, repeating the famous expression of the former chief judge of the highest New York state court, Sol Wachtler, that prosecutors can get grand juries to “indict a ham sandwich.”[4] According to the Bureau of Justice Statistics, “U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.”[5] These statistics may not be representative of all state grand jury practices – some of which are more pro forma in ordinary cases and others may require hearing a range of evidence that federal prosecutors are not required to present.

 

 

 

 

In a typical state grand jury proceeding, the prosecutor calls only one or two witnesses, usually the reporting officer and the victim (if there is one), and the prosecutor tries to limit testimony as much as possible in order to avoid creating impeachment evidence for cross-examination by defense counsel.  In more complex cases, additional witnesses are called and physical and forensic evidence presented. 

 

Grand jury proceedings are secret, closed to the public and to defense counsel. The officer presiding in the grand jury is the prosecutor, who also instructs the grand jury on the law. There is no judge in the grand jury room.

 

Targets rarely appear before the grand jury, although a sympathetic target with a defense narrative will often choose to appear in a complex case.

 

Grand jurors can in some jurisdictions direct questions at a witness.  In the Michael Brown shooting death, some grand jurors directed questions to Darren Wilson during his four-hour testimony.[6]

 

Grand juries can hear dozens of cases during any one term. Their terms can extend over months. They are not sequestered.  However they are bound to rules of secrecy.  

The State of Missouri has a provision, in its Bill of Rights, which describes the composition, jurisdiction, and powers of the grand jury, but does not make grand juries constitutionally required in all cases.[7]

 

 

This St. Louis County Grand Jury decided to return no bill of indictment against Officer Wilson in the shooting death of Michael Brown.  This grand jury did not decide that a crime did or did not take place.  Another grand jury could return a different outcome should the matter be re-introduced at a later time.

 

Contrary to much of the media presentation, a grand jury decision is not a “verdict.” A petit jury at a trial after hearing all the evidence returns a verdict (ver-truth; dict-statement, i.e. a statement of truth). A grand jury either true bills or no bills an indictment. Grand juries never return verdicts.

 

Everything. The proceedings resembled a trial rather than a grand jury proceeding. For example, the transcripts show that the prosecutors cross-examined potential prosecution witnesses, probing for inconsistencies in their testimony.  They were openly skeptical of the testimony of others. 

 

There were about 60 witnesses called during almost 75 hours of proceedings, resulting in almost 5,000 pages of transcript.  Most grand juries see only one witness per case: the arresting officer.  As a result of the number of witnesses the grand jury took far longer to reach its decision than do most grand juries. 

 

The subject of the grand jury proceeding, Darren Wilson, presented four hours of testimony at the outset of the Grand Jury proceeding.[8] Mr. Wilson was not rigorously cross-examined, while other witnesses were subject to extensive and aggressive cross-examination.

 

An Assistant District Attorney gave inaccurate and misleading instructions to the Grand Jury at the beginning of the proceeding regarding controlling law on whether officers can kill a fleeing suspect without considering the officer’s fear of life. She cited a Missouri statute that had been overturned by the U.S. Supreme Court in 1985.[9] She corrected the record weeks after citing the wrong statute and long after Officer Wilson had testified.

 

The prosecutors did not suggest which charges the grand jury should consider, instead leaving it to the grand jurors to decide. 

 

The grand jury’s no true bill decision was announced late in the evening after several public announcements that a decision was imminent.

 

The transcripts of the grand jury were released to the public immediately after the no true bill was announced. By contrast, grand jury proceedings are sealed in most states and their secrecy is protected by non-disclosure laws that usually involve criminal penalties for disclosure. In Missouri, for instance, § 540.320 of the Missouri Statutes states that “No grand juror shall disclose any evidence given before the grand jury” and provides that “any juror violating the provisions of this section shall be deemed guilty of a class A misdemeanor.” It is extremely rare for grand jury transcripts to be publicly available. 

 

 

In many jurisdictions, a grand jury often is convened to review every police-involved homicide. A prosecutor who, while accountable to an electorate, must also rely on the police department to bring him cases, will frequently find it very useful to attribute a decision not to bring criminal charges to the grand jury.  This means that police shootings will sometimes be presented to a grand jury in a situation where, had a civilian been involved, the prosecutor would have made no presentation. 

 

State grand juries tend to be more likely to excuse a police officer in the shooting death of an unarmed civilian, due to broad definitions of deadly force and the rules about when it is justified. In Houston, Texas, for example, local grand juries have cleared police of shooting civilians 288 consecutive times.[10] This is tends to be the case in Missouri, as a result of the extraordinary deference in Missouri law to police officer discretion.  Missouri Revised Statutes § 563authorizes deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”[11]  

 

 

From 1976-2012, FBI data show that there were 186 fatal shootings by police officers in St. Louis County.  Police reported self-defense (“felon attacked officer”) in 77 of these killings (41.3%).  In another 15 (8.1%), the shooting took place when the “felon attacked a fellow officer”.  The rest of the circumstances included fleeing felons (before Garner), shootings during the commission of a crime, or shootings while one person attacked another.

 

From 1990, the year before Bob McCulloch became Prosecuting Attorney in St. Louis County, through 2012, there were 112 fatal shootings of civilians by police, officers.  80 (71.4%) of the victims were Black. 

 

From 2005-2012, there have been 53 fatal shootings of civilians by police officers in that 8 year period, 28.5% of the total of 186 since 1976.  In that period, 37 (69.8%) of the victims in those shootings were Black.

 

Since Bob McCulloch took over as prosecutor in 1991, 33 police officers have been prosecuted in criminal cases, resulting in 20 convictions (5 cases are pending).[12] Four cases of police killings of citizens while on the job have been presented to St. Louis County grand juries. No indictments of police officers were returned in any of those cases. The Michael Brown killing is the fifth such case without an indictment.

 

 

The decision not to indict does not trigger Double Jeopardy protections. As a result, a subsequent grand jury, or a specially appointed independent prosecutor presenting evidence at another grand jury, could revisit the case and issue a criminal indictment.

 

Prosecutor McCullouch could convene a second grand jury, but this extremely unlikely. McCulloch has made it clear that he considers Wilson did not commit a crime. Missouri Governor Jay Nixon has the authority to appoint a special prosecutor that would present the case to a new grand jury, but to date, the Governor has said he would not do so. 

 

However, a court could appoint a special prosecutor, under Missouri Rev Stat § 56.110. That statute authorizes the state court with criminal jurisdiction over the County to appoint another, independent attorney to prosecute the case if the Court believes there was a conflict of interest for the prosecutor in the first grand jury proceeding. The court with jurisdiction in this matter is the 21^st Judicial Circuit Court of Missouri, whose presiding judge is Hon. Maura McShane. There is precedent in Missouri for the appointment of a special prosecutor. In 1996, in State v. Copeland (928 S.W.2d 828 (Mo. 1996)), a Missouri court replaced the local prosecutor, citing conflicts of interest due to “the advocacy of the prosecutor for the defendant’s position.” [13]. Whether a state court takes such action in this case is up to that Court.

 

In addition, a federal as opposed to the state prosecution does not raise a Double Jeopardy issue (any defendant can be convicted and sentenced for the same crime in state and federal court if there are provisions related to that offense in the state and federal criminal codes). 

 

There is a possible U.S. DOJ Civil Rights investigation of the police officer in the shooting death of Michael Brown. There is also an ongoing U.S. DOJ investigation of patterns and practices of use of force and racial discrimination under 42 U.S.C. § 14141

 

The family of Michael Brown is likely to bring a civil wrongful death lawsuit in federal court.

 

 

Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law

 

# # #

 

NOTES

 

[1] The Fifth Amendment of the United States Constitution provides “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” 

[2] For a survey of grand jury practices across jurisdictions, see

[3] Kaley v. U.S., 134 S. Ct. 1090 (U.S., 2014)

[4] https://www.nycourts.gov/history/legal-history-new-york/luminaries-court-appeals/wachtler-sol.html

[5] Ben Casselman, “It’s Incredibly Rare For A Grand Jury To Do What Ferguson’s Just Did,” New York Times 538, Nov. 24, 2014. At: http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren-wilson/.  See, also, http://www.washingtonpost.com/blogs/the-fix/wp/2014/11/24/the-rarity-of-a-federal-grand-jury-not-indicting-visualized/ 

[6] Andrew Cohen, Law and Disorder in Ferguson, Marshall Project, November 25, 2014, athttps://www.themarshallproject.org/2014/11/25/law-and-disorder-in-ferguson

[7] Article I, Section 16 of the Missouri Bill of Rights reads:

 Section 16. That a grand jury shall consist of twelve citizens, any nine of whom concurring may find an indictment or a true bill: Provided, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies; but when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime; and that the power of grand juries to inquire into the willful misconduct in office of public officers, and to find indictments in connection therewith, shall never be suspended.

[8] USAM section 9-11.152, states that "under normal circumstances, where no burden upon the grand jury or delay of its proceedings is involved, reasonable request by a 'subject' or 'target' or an investigation, as defined above, to testify personally before the grand jury ordinarily should be given favorable consideration." See: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm - 9-11.152

[9] Tennessee v. Garner, 471 U.S. 1 (1985)

[10] http://www.houstonchronicle.com/local/item/Bulletproof-Part-3-Hard-to-charge-24421.php

[11] Missouri Revised Statutes, § 563
[12] Heather Cole, Background Check: Looking at McCulloch’s Prosecution History, Missouri Lawyer’s Weekly, September 8, 2014, at http://molawyersmedia.com/2014/09/08/background-check-looking-at-mccullochs-prosecution-history/
[13]. Judd Legum, How One Woman Could Hit the Reset Button in the Case Against Darren Wilson, Thinkprogress, December 2, 2014, athttp://thinkprogress.org/justice/2014/12/02/3598082/one-woman-could-appoint-a-special-prosecutor-and-bring-justice-to-ferguson/