Why the Grand Jury Process Can’t Be Trusted in this Case


Richard Kuhns, JD, Professor of Law Emeritus

In the commentary “WU law school works to help the community” (St. Louis Post Dispatch, Nov. 14), Washington University Law School Dean Nancy Staudt stated that “we must welcome and celebrate diversity of opinion.” Her call to celebrate diversity of opinion is belied by a public statement she made only a week earlier.

In an email to the entire law school community, Dean Staudt, on behalf of the school, announced as settled one of the most controversial aspects of the response to Michael Brown’s killing. “There is every reason,” she declared, “to trust the (grand jury) process.”

The reasons Dean Staudt cited for trusting the grand jury process — that the grand jurors are representatives of St. Louis County and that they had been hearing cases well before Darren Wilson killed Michael Brown — may well be, and I believe are, reasons for not trusting that process.

The grand jurors are predominantly white; and the structural racism in St. Louis County, which is largely hidden from most white residents, is probably as bad as, if not worse than, structural racism anyplace else in the country. Under these circumstances, it would be reasonable to assume that at least some if not most grand jurors may have a bias — not necessarily a conscious bias but just a way of looking at the world — that might lead them to evaluate what happened in a manner favorable to Darren Wilson.

This possibility may well be exacerbated by the grand jurors’ perceptions of the two primary actors, Darren Wilson and Michael Brown. One would expect that Wilson probably made a good impression when he testified before the grand jury. If there were a risk that that would not be the case, his attorneys presumably would have kept him from testifying. On the other hand, the tape of the convenience story robbery (which the jurors almost certainly saw on television even it weren’t presented as evidence) conveys a negative image of Brown.

These pictures of Wilson and Brown are woefully incomplete and, in any event, of only very slight relevance to assessing what actually happened during the Wilson/Brown encounter. Nonetheless, there’s a possibility — I would guess a rather strong possibility — that they have had a disproportionate impact on the grand jurors.

The work that the grand jury had been doing before Wilson killed Brown was presumably of the traditional type: The prosecutor would present evidence with a view toward getting an indictment. By contrast, with respect to Wilson, Robert McCulloch has said that the grand jury is being given “all” of the evidence so that it can decide whether to indict without any recommendation from the prosecutor. This presents at least two potential problems.

First, the unique approach to this case inevitably sends a message to the grand jurors; and since the consistent prior message presumably was “you should indict,” the message of the new approach may be well be “don’t indict.” The prosecutors may have been able to substantially alleviate this problem by offering a plausible explanation to the grand jury for their new approach. But have they tried to offer such an explanation? And if so, how effective were they? Knowing the answers to these questions is important for assessing the extend to which one should put trust in the grand jury process; and, at least so far, we don’t know.

Second, presenting “all” of the evidence to the grand jury is not a simple task. For example, how thorough are the prosecutors being in exploring varying inferences that can be drawn from physical evidence? To what extent are the prosecutors using competing experts to explore nuances of the autopsy reports? To what extent, if at all, are the prosecutors with instructions or evidence trying to anticipate and compensate for the grand jurors’ likely predispositions?

Of course, we don’t know the answers to these questions either, but we do know that prosecutors are advocates and that presenting “all” of the evidence is not their normal role. Thus, it seems reasonable to wonder whether they’re very good it. And if they aren’t, that’s another reason for distrusting the grand jury process.

Finally, there is the overarching problem of the appearance of fairness. Many people claimed from the outset that McCulloch and his office couldn’t be fair. Although both McCulloch’s personal history and some of his early statements about this case seem to support that view, I’ve been an agnostic on the question. Maybe he can be fair. However, given the widespread, understandable distrust of McCulloch, especially in the black community, and the racially charged nature of just about everything related to the case, I can’t imagine how he — and by extension his prosecutors and the grand jurors, who are inevitably influenced by his prosecutors — can begin to satisfy the appearance of fairness.

As Justice Frankfurter said in Offutt v. United States, “Justice must satisfy the appearance of justice.” And by the same token (if it is not a complete redundancy), fairness must satisfy the appearance of fairness. Proclaiming trust in the grand jury process completely ignores this critical component of fairness.

Read article in St. Louis Dispatch


  1. Is there anyone in this country that could be considered unbiased at this point? or even at the point when it went to a grand jury?

    1. I think that he is suggesting that those in a position of authority go out of their way to show that they are not acting with prejudice. He brings up a good point that our justice system doesn’t exist in a vacuum and that in cases where public opinion and the narrative that we are building as a nation are strongly affected by a case, it is important to adapt the way the case is handled to show the community that the case itself is not subject to the very disease of racism that fueled the event which it is addressing.

  2. I question the ethics of any lawyer who questions the legitimacy of the process and institutions of our justice system. The grand jury weighed the evidence and reached the only conclusion it could have. The only person to be honored through all this is Officer Darren Wilson for putting his life on the line to protect the good people of Ferguson. End of story!!!

    1. It is extraordinarily unusual for a prosecutor who wants an indictment not to get one. 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. Which is to say grand juries return a decision to prosecute 99.99% of the time. It is not a trial. It cannot be since there is no judge, no advocate for the other side, and usually no public scrutiny–it is a one-sided venue that is entirely controlled by the prosecutor. Grand jurors comply so often with the intent of the prosecutor that they are essentially rubber stamps. Don’t get me wrong–the citizens who were chosen to serve as grand jurors did so honorably and I do not doubt that they performed as instructed. But this was not a trial.

      The prosecutor in this case decided to put “all the evidence” in front of the grand jury (without opposition counsel)–but that is not how this is supposed to work at all. His job is to get the case to trial. Then the actual trial system can determine innocence or guilt. But that is not what happened here. There was no trial. There will not be a trial.

      But to expect people to have reverence for a process that was an aberration is silly. “The legitimacy of the process and institutions of our justice system.” Nonsense. This had nothing to do with the way our system is supposed to work.

      Prosecutors are reelected based on their records for conviction. They don’t bring cases they can’t prosecute and they don’t present the other side of the case. He cannot be both prosecutor and defender in the same action.

      1. Your basic assumptions are based on what you’ve heard in the media. The prosecutor is not obligated to obtain an indictment or to prosecute anyone that the public thinks needs to be prosecuted. You don’t put someone through a trial in jeopardy of life or limb when there is no evidence to support guilt. Often times, a prosecutor may decide that there isn’t any evidence to convict someone so they don’t even attempt to get an indictment. Those cases don’t make the news. If McCulloch had said publicly that there wasn’t any evidence that pointed to Wilson’s guilt in order to prosecute or if he had went to a judge with no evidence supporting a conviction, the public would have screamed “cover up.”

        The case against Darren Wilson had no merit, but McCulloch did the most fair thing that he could do by giving the grand jury of Darren Wilson’s peers all of the evidence that existed and let them decide if he should be put in jeopardy of life or limb. Their decision was, “no.”

        1. No, I do get it. I’ve read and understand the language in the MO “fleeing felon” statute. And, as worded, it would be impossible to convict Darren Wilson (or any other LEO who uses deadly force) for any crime. So why did McCulloch think that this bizzaro-world grand jury process would make anything better?

          Granted, most of the population doesn’t understand the difference between this charade and a trial. But there are still a few of us that do. And this was neither. It wasn’t a trial. And it wasn’t a normal grand jury process. He basically decided to use the only venue available to him and put on this not-a-trial, without the necessary elements of a judge or opposing counsel. People can read all 5000 pages that he issued, and it is still only one side of a story, because there was no one in the process who was cross-examining or challenging anything.

          He can either NOT have a “trial” and explain the law. Or he indict can have an actual trial (for which the outcome is foregone). The outcome was always going to be the same, along with the public response. Darren Wilson is not guilty of a crime according to MO law. And many people will think that is unjust.

          Instead, McCulloch just confused everyone and set dangerous precedent for how grand juries are supposed to work. No one has increased respect for the system. No one’s feelings were made better by the process. What did he accomplish?

          1. No, you are not getting it. There are two uses of a grand jury. One is to seek an indictment, the other is an investigative grand jury that actually weighs all the evidence and essentially investigates the matter. That’s what this one did. The fact is, it was a no brainer. Michael Brown was a thug who deserved to be arrested for robbery and assaulting a police officer. But instead of complying with Wilson’s commands, he decided to get himself killed. No ones fault but his own. Thank god this country has the best law enforcement in the world. My hat is off to all cops.

  3. Race. That is what everyone wants to talk about when it comes to Mike Brown supporters. Race has nothing to do with this one.

    I like facts.

    Fact Robbed a store.

    Fact Walking down the middle of the road like an untouchable with his stolen goods

    Fact Attacked a cop and got shot.

    The evidence early on from the autopsy refuted all the eyewitness accounts of “Hands Up” and “Shot in the Back”, yet the narrative of the protests have not adjusted to the facts. I find this entire incident to be a condemnation of the education system as a whole in that community (you know, the unaccredited one), and the “Entitled” generation.

    This will take 50 years to fix if it is implemented tomorrow (and it won’t be). Stop the handouts! I am not saying stop helping those in need due to a poor choice or a a bad run of luck, but stop the generational entitlement programs. 5 year limits on assistance of any kind. After that, declare the person a failed mutation and let Darwin take his course. If you cannot respect yourself, you cannot respect anyone else and real respect comes from what you can put together on own, from scratch. Like the poor bastards who tried to run businesses in Ferguson.

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