When the killing of Michael Brown first erupted into something of a national crisis, St' Louis Co. district attorney Robert McCulloch suddenly found himself on the national stage. The media went scrambling for information and the picture that emerged was of a tough on crime classic law and order type. He had the authority to make a decision about prosecution on his own. However, as the political pressure began to build he decided to take the case to a grand jury. Slate has an interesting article about his tactics in managing the grand jury in a manner that is essentially unheard of in the contemporary criminal justice system.
Fairness in Ferguson The grand jury system is corrupt, and the Darren Wilson case shows how to fix it.
Charging cops with crimes has always been a tricky business. That’s because a raft of state and federal laws, as well as union rules and department regulations, conspire to afford law enforcement officers with due process protections ordinary citizens can only dream of. Moreover, the politics of prosecuting police are deeply fraught for district attorneys who rely on cops to obtain the convictions that win the DA elections. Prosecutors know full well that one of the things police officers hate most is watching (even their guilty) brethren put on trial or, in the very unusual case, hauled off to jail. Given all this, it’s no surprise that cops get every break imaginable in the criminal justice system. Still, even among the special considerations generally afforded cops charged with crimes, McCulloch’s decision to entirely open up the grand jury process is rare.
Historically, grand juries were viewed, as Judge Learned Hand observed, as the “voice of the community” acting not as an extension of the government but as a shield against it. They were originally designed to guard against malicious, onerous, and hasty public prosecutions. But over the years, thanks to power-hungry prosecutors and an overburdened criminal justice system, that historical role has been eroded to the point of nonexistence. What was once a great bulwark against the oppressive use of the government’s power to prosecute became an organ of the very agencies it was meant to curtail. In contemporary America, prosecutors exercise so much control over grand juries that a district attorney can get a grand jury to (as Sol Wachtler, the former chief judge of the New York Court of Appeals, famously put it) “indict a ham sandwich.”
The way the grand jury process usually works is that the prosecutors control the presentation of evidence with the aim of getting an indictment. In this very high profile case there is certain to be great outrage over whatever the outcome of the process turns out to be. As a politically elected official, McCulloch had a really big problem on his hands. So he has taken the unusual step of saying that he would present all available evidence to the grand jury regardless of whether it supports an indictment or not. That is possibly one reason that the process has taken so long.
Of course McCulloch’s decision is an entirely cynical move designed to insulate him from the political fallout of any grand jury decision. But it is also a terrific moment to reflect on what our grand jury system has become and to consider whether it’s time to reform it. After all, shouldn’t all citizens enjoy the same standards of due process we regularly afford police officers? It is really too much to ask that before a citizen is indicted for a felony, we require prosecutors summon all the witnesses with relevant evidence to give sworn testimony?
McCulloch is supposedly going to make the evidence that was presented publicly available to dispel claims by either side that the whole thing was rigged. I guess he will have to wait to the next election to see if the approach actually protected his political hind end. Whatever happens, there will be a lot of upset people. The media seems to be anticipating that an announcement will be made sometime this week-end.