by Christopher Zoukis

On November 30, 2014, the St. Louis County Prosecuting Attorney's Office announced that Ferguson (MO) Police Officer Darren Wilson would not be indicted in connection with Wilson's fatal shooting of unarmed teenager Michael Brown on August 9, 2014. The failure of the grand jury to return an indictment was not a surprise to most observers, because the public perception is that prosecutors are loathe to indict police officers who kill, and because of the virtually unchecked power those prosecutors have over the grand jury process.

The Grand Jury Process

As many might recall from a high school civics class, the Framers of the United States Constitution included the Grand Jury clause in the Fifth Amendment: "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...” These citizen bodies date back to the 1600s in American law, and often acted as a defense against the whims of the British monarchy, a protector of the colonists against oppression and despotism. In its intended form, the "Fifth Amendment's grand jury right serves a vital function ... as a check on prosecutorial power." See: United States v. Cotton, 535 U.S. 625, 634 (2002).

Usually, a grand jury consists of a panel of citizens in a group of 12 to 23 members, who decide by majority vote whether there is "probable cause" that a crime has been committed, as opposed to the higher, trial jury standard of "beyond a reasonable doubt" for a guilty verdict. Grand juries may choose to indict the target by a majority vote (not a unanimous one). All but two states, Connecticut and Pennsylvania, and the District of Columbia, use the grand jury for such indictments.

Because the vote of the grand jury is limited to determining probable cause, there is no need for a true adversarial process. As such, there is no need for the grand jury to hear all of the available evidence or conflicting evidence. The decision as to what evidence should be presented is thus left to the prosecutor. For obvious reasons, this arrangement allows great power to reside in the prosecutor's hands.

Grand jury proceedings are generally convened in secrecy, ostensibly to protect the identities of the grand jurors, witnesses and others involved, and to allow prosecutors to conduct investigations without unnecessarily disclosing their existence. However this same secrecy leaves little potential for oversight. In the federal system, for example, grand jurors, government attorneys, stenographers and court personnel are specifically prohibited from disclosing grand jury matters. Nor does a target or witness have a right to even have an attorney accompany them in the grand jury room (counsel may sit inside to consult with the party).

It is in this vacuum of oversight that many feel injustices are all but certain to arise. At the civil liberties end of the spectrum, secrecy leaves criminal defendants at the mercy of the prosecution.

Edwin Wilson and the CIA

The case of Edwin P. Wilson, released from federal prison in 2003, is an example. Wilson was a CIA agent who "retired" from the agency and moved to Libya to sell military surplus items to then-strongman Muammar Gaddafi. While Wilson's activities appeared on their face to be illegal, he had been sent to Libya at the order of the CIA's deputy director to get close to Gaddafi and provide intelligence about the notorious enemy of America.

After Wilson was indicted for his activities by overzealous prosecutors, he was never informed that the CIA's deputy director had indeed told the grand jury that he had "tasked" Wilson to go to Libya. Using other secrecy laws to prevent Wilson from obtaining discovery items the prosecution quickly gained a conviction and a 52 year sentence. After the grand jury abuses became public, Wilson was released from prison, but not until seeing nearly two decades in federal prison. See: United States v. Wilson, 289 F. Supp. 2d 801 (S.D. Texas 2003).

Such cases are legion, which is why organizations like the National Association of Criminal Defense Lawyers have called for fundamental changes in the way criminal defendants are denied access to grand jury materials and testimony and other reforms.

At the other end of the spectrum, of course, is the apparent reluctance of prosecutors to bring criminal charges against law enforcement officers who kill. In 2011, the Cato Institute reviewed some 8,300 instances of police misconduct from April 2009 to December 2010. In at least 426 cases, law enforcement officers were accused of using force that resulted in death. Only 28 officers faced charges, and only 14 who were actually prosecuted were ultimately convicted.

The Ferguson Grand Jury

In the Darren Wilson case, St. Louis County Prosecuting Attorney Bob McCulloch was accused of using the secret grand jury process to effectively avoid any prosecution of Officer Wilson for shooting Michael Brown. Even in the face of eyewitness testimony from citizens who said that unarmed Michael Brown was shot while surrendering with his hands up, Wilson was never charged, never arrested, and never faced a simple complaint to begin criminal proceedings, prior to any grand jury involvement-- as would have been the case for any non-law enforcement defendant against such a factual backdrop. The Ferguson grand jury sat for three full months, and the public, of course, saw none of the proceedings.

One of the grand jurors who heard the evidence has filed suit to be        able to talk about the case. Represented by the American Civil Liberties Union, the juror's suit contends that the lifetime gag order imposed in usual cases is not appropriate in the Ferguson case, primarily because McCulloch's unusual public announcement of the Jury's findings is inaccurate, "especially the implication that all grand jurors believed that there was no support for any charges."

ACLU attorney Tony Rothert said, "the rule of secrecy must yield because this is a highly unusual circumstance. The First Amendment prevents the state from imposing a lifetime gag order in a case where the prosecuting attorney has purported to be transparent." McCulloch has released a great volume of grand jury materials supporting the decision not to indict; the unnamed grand juror wishes to be heard as well.

Secrecy Alleged in New York

In Staten Island, New York, District Attorney Daniel Donovan waited more than a month to even convene a grand jury against several police officers who killed Eric Garner under dubious circumstances in July, 2014. The police officer seen on a video of the Garner encounter choking Garner, Daniel Pantaleo, was also cleared of all charges.

Letitia James, the New York City Public Advocate, and the New York Civil Liberties Union are asking a state court judge to release evidence as well. Acting Staten Island Supreme Court Justice Stephen Rooney has already released select information, but only that information cherry-picked by the prosecutors. James has said, "Interest of the public and the perception of fairness make transparency vital."

Why do many feel that prosecutors like McCulloch and Donovan are using the grand jury process to manipulate the criminal process in favor of cops who kill? Some feel that it's simply a matter of an "us versus them mentality" in which prosecutors and police protect their own. Others have speculated that a secret grand jury who fails to indict a cop who kills a young black man provides a measure of political cover ("it wasn't me ... The grand jury decided the case wasn't strong enough.").

A Call for Change

The anger over the Ferguson and Staten Island cases has prompted new calls for changes in the way grand jury proceedings are convened. New York's Attorney General, Eric Schneiderman, has asked Governor Andrew Cuomo to allow him to talk over cases involving police actions resulting in civilian deaths. Taking such cases out of the hands of local prosecutors would help reduce a perception that charging decisions are "improperly and unfairly influenced by the close working relationship" between police and prosecutors," as Schneiderman put it.

Others have called for abolishing grand juries altogether. In England, where our grand jury tradition was spawned centuries ago, grand juries were abolished in 1933. London-based legal writer Joshua Rojzenberg watched the Ferguson events and asked, "Why not have everything out in the open and let both sides say, openly, in a public forum, to an ordinary jury what their arguments are — and then let an ordinary [petite] jury decides [at a trial]?"

Many others on this side of the ocean are asking the same question right now.

Sources: www.huffinqtonpost.com: uspolitics.about.com; www.nacdl.org; www.rcfp.org; New York Law Journal; PRI's the World

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