In the wake of the announcement that a Missouri grand jury had declined to indict police officer Darren Wilson for the brutal killing of teenager Michael Brown, many have criticized the actions of the local prosecutor and the procedure the grand jury followed. And for good reason.
As the saying goes, a grand jury would indict a ham sandwich if a prosecutor wanted them to. Grand juries hand down indictments almost every time they're given the chance. After all, their primary role is just to determine if there is probable cause to suspect a crime has been committed by the accused. They are not required to conclude ultimate guilt. They're just a way station on the route to a public trial.
Making the rounds is a passage from a 1992 Supreme Court case which clearly states the traditional role of the grand jury:
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 (O. T. Phila. 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.
United States v. Williams, 504 U.S. 36, 51-52 (1992).
Indeed, the procedure followed by the grand jury in case of Darren Wilson is highly unusual, if for no other reason than the inclusion of extensive testimony by the accused himself. Normally only the prosecutor or a couple of witnesses in favor of indictment will be presented. Government attorneys are not even obligated to produce evidence suggesting the suspect's innocence if they possess it (like they would be in an actual trial).
If you think the Missouri grand jury got it wrong and should have indicted Wilson for the murder of Michael Brown, United States v. Williams gives you a lot of rhetorical ammo. But the full context of the case and the scope of its holding goes beyond just one incident of police homicide. It applies to all criminal defendants in all criminal cases where a grand jury is called to consider an indictment. A more extensive discussion of Williams is useful.
The Underlying Case
In 1988, a federal grand jury indicted investor John Williams for making numerous false statements overstating the value of assets owned by four Oklahoma banks.
After his arraignment, Williams moved the trial court to disclose all exculpatory evidence from the grand jury transcript. Exculpatory evidence is evidence which suggests a suspect is not guilty of the accused crime. The court granted Williams' motion. After reviewing the grand jury record, he moved for the court to dismiss his indictment, arguing that the prosecutor was obligated to present "substantial exculpatory evidence" to the jury but failed to do so.
The trial court eventually dismissed the indictment. The government prosecutors appealed, but the Tenth Circuit Court of Appeals affirmed the lower court's ruling, holding that the government had "substantially influenced" the grand jury to indict or otherwise raised doubt that the grand jury's decision was "free from such substantial influence." United States v. Williams, 899 F.2d 898, 903 (10th Cir. 1990).
The government appealed to the Supreme Court, which accepted the case.
The Supreme Court Ruling
The issue considered by the Court was "whether a district court may dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury substantial exculpatory evidence in its possession." Williams, 504 U.S. at 37.
The Williams opinion, written by Justice Antonin Scalia and joined by four of his colleagues, extensively explores the history of grand jury procedure in the United States. The grand jury is not actually a part of the judicial branch of government - "it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people." Id. at 47.
This separation from the normal judicial apparatus defines the grand jury's unique function:
Unlike [a] court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not. It need not identify the offender it suspects, or even the precise nature of the offense it is investigating. The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses, and deliberates in total secrecy.
Id. at 48 (internal quotations and citations omitted).
As the Court clearly explains, a grand jury does not operate under the rules to which trial courts are bound. For that reason, it also provides far fewer protections to criminal defendants, who, in every other aspect of the criminal justice system, receive significant due process protections under the Fifth, Sixth, and Fourteenth Amendments to the Constitution.
For example, in a criminal trial, the government may not use against a defendant evidence that was seized in violation of the Fourth Amendment. This is called the "exclusionary rule." But that rule doesn't apply to a grand jury. Similarly, grand juries may also consider hearsay testimony.
On the other hand, while illegally obtained evidence and second-hand testimony may be admitted, the grand jury is under no obligation to consider the suspect's side of the story. The reason is because "the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side." Id. at 51 (internal citation omitted).
The rules governing grand juries are so lax that indictments cannot be challenged after they are handed down on the basis that the evidence considered by the grand jury was insufficient or incompetent. "[T]he mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment, and . . .a challenge to the reliability or competence of the evidence presented to the grand jury will not be heard." Id. at 54 (internal quotations omitted).
Ultimately, the Court in Williams ruled that prosecutors are not obligated to present exculpatory evidence during the grand jury procedure. They may present only one side of the story - their belief that the suspect has committed a crime - and the grand jury may decide to indict in reliance upon that alone.
The Implications of the Grand Jury Tradition
It should dawn on you by now that the traditional grand jury proceeding is extraordinarily biased in favor of the government. Suspects facing a motivated prosecutor rarely have any chance to avoid indictment. And the stats prove it - indictments are handed down so often that grand juries are effectively just rubber stamps for prosecutor prerogatives.
But what happens if a prosecutor seeks an indictment for nefarious reasons? Perhaps a prosecutor has a grudge, or engages in extensive misconduct. Even if an unfairly accused suspect is ultimately exonerated at trial, they still must endure numerous negative effects of a criminal accusation: lost time, expensive legal fees, embarrassment, injury to reputation, and even jail time if the charges are severe enough for a judge to deny bail. Innocent suspects may even be convicted and endure long prison sentences or worse.
There are few safeguards, at the grand jury stage of the proceedings, to prevent that kind of harm to innocent people. That's why Justice Scalia's history lesson in United States v. Williams must be approached with some apprehension. It is true that Darren Wilson received special treatment from a grand jury of a sort almost never extended to anyone else facing potential indictment. But that kind of special treatment could easily protect legitimately innocent people from being indicted when they otherwise would be under the prevailing tradition of the grand jury system.
Which would we prefer? Even if you believe Wilson should be charged with a crime for killing Michael Brown, is a lax grand jury system highly vulnerable to prosecutorial misconduct and abuse really preferable to something more thorough and protective of constitutional rights?
Maybe only the end result matters when it comes to public opinion. How many people would happily quote Justice Scalia if an obviously innocent person had been indicted instead? It's a question worth considering, because that's a far more common outcome than the deference given to Darren Wilson.