Last night, after more than 3 months during which it met 25 times and heard 60 witnesses, a grand jury in Ferguson, Missouri declined to indict Officer Darren Wilson on any of the five charges put forth by the prosecution ranging from second-degree involuntary manslaughter to first-degree murder in association with the death of unarmed, 18-year-old Michael Brown, who Officer Wilson shot multiple times.
Why did the Ferguson grand jury take so long to come to a conclusion? Why is it that indicting ordinary citizens is both so common and quick that we joke about grand juries’ ability to indict a ham sandwich, whereas law enforcement officers much more frequently are No Billed (not indicted)? What was different about the Ferguson grand jury process from what an ordinary citizen would experience?
Susan McGraugh, defense attorney and Associate Professor with St. Louis University School of Law, and Jerryl T. Christmas, defense attorney and former prosecutor for the city of St. Louis, explained in a short video entitled “No True Bill” how Missouri grand juries usually work and how the Ferguson grand jury was different. McGraugh and Christmas detail several ways in which Wilson’s experience was far more generous to him than what most ordinary citizens experience if they have a run-in with the law.
1. Role of the grand jury in indictment.
Three out of the first ten amendments to the United States Constitution that make up the Bill of Rights deal with juries. Grand juries are explicitly covered by the Fifth Amendment, which begins:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…
While this right has not been recognized by the Supreme Court as being incorporated against the states, many states including Missouri do provide for grand juries in one form or another. This is not to say that indictment in such states is guaranteed to be done by way of a grand jury. To the contrary, in Missouri, for examples, prosecutors have more than one way to bring charges against the accused and, in fact, usually use a different method to charge those they accuse.
“Under normal circumstances, people are charged by information,” explained former city of St. Louis prosecutor Jerryl T. Christmas, “and then the case is sent to the grand jury for confirmation, which means that the person is normally already in custody, has been charged, and generally given a high bond before the case is sent to the grand jury.”
Defense attorney Susan McGraugh agreed that Wilson’s indictment process was out of the ordinary. “It is very unusual that instead of charging someone and then taking the case to grand jury, Bob McCulloch, by his own admission, for the first time is saying, well let’s have a grand jury look at everything instead,” McGraugh explained.
A ordinary person would typically bear the cost of getting out of jail and, if unable to afford to do so, could find themselves stuck in jail even though they have yet to be convicted of any offense. The consequences could be dire: loss of employment, loss of housing, loss of children, and so on, not to mention the inherent danger of being in jail for just one day that could even lead to loss of life. Officer Wilson, on the other hand, not only remained free for the duration of his legal proceedings, but also on paid leave from his job and was even able to get married in the meantime.
2. Evidence heard by the grand jury.
While prosecutors usually ignore the intended protective role of an independent grand jury for those accused, they do typically embrace the notion that a grand jury is not tasked with proving guilt or innocence, but rather serves only to establish whether there is probable cause to move forward to trial. There is a much lower burden for the prosecutor to get a case past a grand jury than for convicting in a trial by jury, and prosecutors are usually perfectly happy to use this to their advantage.
Being under no legal obligation to make a case on behalf of the defense or to allow the defense to make its own case before the grand jury, in most cases brought against ordinary citizens, prosecutors will selectively present evidence only toward establishing guilt, which is all that is needed for their goal of securing indictments.
“The grand jury doesn’t need to hear all the evidence and normally we don’t do that… At the grand jury level, it’s just a probable cause hearing. It’s not a determination of guilt or innocence, so all you’re doing is just presenting enough evidence to say that you have probable cause to move forward,” explained Christmas.
“Normally, they would bring in the detective and one or two witnesses and the grand jury would vote. It would be done in a day because, remember, what the prosecutor is trying to do is to get a quick indictment so that they can move on to trial. Now when you say you’re going to give the grand jury all the evidence, that is a tactic that prosecutors use to confuse the grand jury. They’ve been doing this long enough to know that if you overwhelm the grand jury with evidence, it will be difficult for them then to go ahead and make that decision,” Christmas said.
3. Testimony of the accused person heard by the grand jury.
In many grand jury systems, there is no legal recognition that an accused person has the right to testify before a grand jury. When such testimony would not be helpful to securing an indictment, the prosecution often simply opts to keep such information away from the grand jury and instead focuses only on information that tends to indicate guilt and to lead the grand jury in the direction of indictment.
However, in this case, the prosecution allowed Darren Wilson the extremely unusual opportunity to testify before the grand jury for several hours.
Defense attorney and law professor Susan McGraugh noted the stark disparity between the generosity shown by the prosecution toward Wilson as opposed to her own clients (and, in fact, accused people in general): “My first thought was, boy I wish my clients had been given the opportunity to have all the evidence presented at their case to the grand jury, and boy, I wish my clients would be given an opportunity to testify at a grand jury and tell their side of the story.” As a defense attorney whose career has been spent representing poor people, McGraugh said, “I resented the fact that someone was being given opportunities that my client would never be given.”
“It is very rare that you even bring a defendant in at the grand jury level,” said Christmas, speaking from his experience as a prosecutor. “Normally when prosecutors want to get rid of a case, they will bring the defendant in and let them give their side of the story, which then the grand jury is able to hear that and most of the time after that they will make a determination not to True Bill.”
As we approach the 800th anniversary of the signing of the Magna Carta, in which jury protection was explicitly codified in English common law, we should keep in mind why the founders of the United States insisted on explicitly and extensively preserving such protections when forming a new government. They recognized the massive potential for abuse of the citizenry under the oppressive power of government and sought to prevent such abuse through various means, including an extensive role for independent juries in our legal system, composed of ordinary citizens whose role was to stand as a bulwark against malicious prosecutions and unjust punishments.
While the United States is supposed to be a nation of liberty and justice for all, treated equally under the law, grand juries as we know them today are a stark reminder of the power prosecutors wield in swaying the outcome of a case to their liking. “The reality is that the grand jury is just an arm of the prosecution. They do whatever the prosecutor says. If the prosecutor doesn’t like the case, generally the grand jury No True Bills it. If the prosecutor likes the case, it gets True Billed. I mean, it’s not, at this level, a difficult feat to get an indictment if you want an indictment,” said Christmas. In Darren Wilson’s case, Christmas argues, the prosecution simply wasn’t seeking an indictment the way it normally would against ordinary citizens it sought to punish.
At the very least, every single one of us has a right to the exact same legal benefits and standard of justice as Officer Wilson enjoyed, courtesy of the choices of the prosecutor’s office in his case. A two-tiered system of “justice” as we have seen in Missouri, in which government officials benefit from prosecutorial favors not afforded to the rest of us, is not a justice system at all, but only a legal system that can be manipulated to deliver the government’s pre-determined outcomes in any given case.
One of the tools we have available to guarantee for ourselves and our neighbors that equal standard of justice for one another is for each of us to be fully informed about our rights when serving on a jury, whether a grand or petit jury, and to be ready and willing to use those rights to protect one another from malicious prosecutions, prosecutorial bullying, and unjust sentencing schemes.
Whether you are serving on a grand or petit jury, your role is NOT simply to rubber stamp the conclusion to which the prosecution leads you. You have the right and the responsibility to deliver a just verdict. And to do so, you must be aware of the motivations of prosecutors and judges, be wary of the instructions that they give you, and come to your own conclusion in consultation with your conscience.