Peter A. Joy, JD, Henry Hitchcock Professor of Law
There is a lot of speculation concerning the grand jury considering whether to indict and charge Officer Darren Wilson in the shooting death of Michael Brown, an unarmed 19-year old man. If the grand jury returns an indictment against Darren Wilson, and if he does not enter a plea, the focus will shift to the trial jury in the case. In both instances, the decision makers will have been twelve randomly picked impartial citizens playing key roles in the criminal justice system.
What we have to understand, no matter what the grand jury does, is that no matter how closely we have been following the investigation we do not have all of the facts. Despite countless newspaper articles, radio and T.V. broadcasts, and innumerable tweets and other social media posts, we do not have all of the facts. The grand jury members, working one day a week without pay, are sorting through the facts and will make a decision whether to indict Darren Wilson based on all of the facts. They are considering medical examinations, forensic reports and statements of witnesses that we know little or nothing about.
While we do not have all of the facts the grand jury is reviewing, there are some important facts about the grand jury that can help us understand the citizens’ role in this case and in other serious cases. Most importantly, we should appreciate that grand juries and trial juries are the foundation of the U.S. criminal justice system and a guarantee of fairness. In most countries, judges alone decide if there is sufficient evidence for a person to be charged with a crime and also determine if the person is guilty. Rather than rely on a single judge, or even a group of judges, our legal system is founded on the belief that the accused has the right to have his or her case decided by twelve unbiased citizens who represent the community. The grand jury and the trial jury stand between the accused and the power of the government, and provide citizen oversight by deciding the facts in criminal cases. Both the U.S. Constitution and the Missouri Constitution guarantee the role of the grand jury, and the grand jury functions as the citizen arm of the court.
The grand jury is deciding whether there is probable cause that Darren Wilson should be formally charged with a serious offense – one or more felonies. The grand jury will be deciding based on evidence presented by two St. Louis County prosecutors, who will also provide information to the grand jury about the law involved. The grand jury is separate from the prosecutor and the police. In deciding whether to indict, the grand jury will be looking for probable cause of a crime, which means that there is some evidence of each of the elements of crime. This is a much lower standard than proof beyond a reasonable doubt, the standard trial juries use to determine if someone is guilty.
In reaching its decision, the grand jury will also consider whether the use of force by Darren Wilson was justified. That was why Darren Wilson was invited to testify. Much has been made about Darren Wilson being invited to testify, but in cases involving defenses such as self-defense, justification, or consent, it is not unusual for the accused to be invited to testify. While some who are accused of possible crimes may refuse to testify, others invited do testify in order to have the grand jury consider their defenses. In that respect, this case is not unique.
Paramount in reaching its decision, the grand jury will consider what Michael Brown and Darren Wilson did, when each acted, and how events unfolded. Physical evidence from the scene of the shooting, inside the police car, and medical examinations of both Michael Brown and Darren Wilson will be important, as will the testimony of witnesses, audio and video recordings, and other evidence.
If Darren Wilson is indicted and charged in the killing of Michael Brown, we will still not hear all of the evidence until there is a trial or a plea in the case. The prosecution will be prohibited from sharing too much evidence with the public because getting all of the evidence in the media before trial could prejudice the case against Darren Wilson and hinder his prosecution. If the grand jury returns no indictment, called a no true bill, St. Louis County Prosecuting Attorney Robert McCulloch has stated that he will seek permission from the court to release as much information as possible so that we may be able to understand the grand jury’s decision.
No matter what the grand jury decides, there is every reason for us to trust in this grand jury. They were chosen long before Michael Brown’s death, and they are representative of St. Louis County. They were also on the job for nearly four months hearing other cases before they started hearing this case, so they are experienced and know their job much better than we do. And, the job of these twelve citizens is to do their best to make a decision based on all of the evidence, and not be guided by public opinion or emotion either for or against returning an indictment.
To me, this case has become much less about the specific incidents that lead to Michael Brown’s death. We don’t know all the facts or have all the evidence.
But others do have those facts and evidence. And they (whoever “they” are) are using that information to carefully craft a narrative, based on some strategy about which the rest of us are left to surmise.
For me, this has become about an alarming mistrust of the entire system. Starting with the police encounter, for sure. But, just as big a problem, mistrust in the way authorities seem to have handled everything that followed.
Why has the public been provided selective details of the case, presented in a certain order, and with emphasis on some parts—all designed to create what seems like a one-sided story? Whose interests are being protected in doing so? Why? If the public is being manipulated we have a right to question the motives of those manipulating us.
The leaks from the grand jury are just the latest in the pattern. The grand jury process is supposed to be secret. The leaks mean—ipso facto—that there is an unethical actor in the process. It doesn’t matter much who is doing the leaking. It simply means the process has a hole in it. Or there would be no leak. And since there is an unethical actor leaking information, why should we assume that there are not other breeches of ethics? Is complete information being given to the grand jurors? Is it being presented to them in the same narrative-crafting way? How can we know? Why should we trust anything about this process? How far does the rot go?
If this kind of leak happened in an ordinary jury trial, there would be an immediate mistrial. The whole thing would be declared spoiled and they would start again. The appearance of justice is the underpinning of justice itself. If we don’t “believe” that fairness is possible–is it?
I don’t know whether our laws even allow for a “mistrial” in a grand jury situation since this isn’t even a trial. These grand jurors are only tasked with finding enough doubt to warrant a trial.
I do trust these grand jurors. I have no reason not to. And I try very hard to trust the institution
and the process. But in this scenario, the public has been given plenty of cause to be very mistrustful. And that, in the end, is an even bigger problem than this one case. No young black men, or protestors, did anything to make this system appear corrupt. They did that all by themselves.
Tracy, I post this only to correct the enormous amount of misinformation that I see in many of these essays (someone has to do it). You have called the grand jury process into question because of leaks. What leaks?? Darren Wilson’s testimony? Nope, Darren Wilson is not bound by the grand jury secrecy rules. He could share his testimony with anyone he desires, and they in turn can do the same. How about the autopsy results? Nope, the doctor performing the autopsy is not bound by grand jury secrecy rules. The autopsy results are part of another process, the coroner’s inquest, and that is a public forum. The fact is, there have been no grand jury leaks. The only players subject to the secrecy rules are the grand jurors themselves, the prosecutors, and any investigators or other witnesses who have access to information that was gathered via grand jury subpoena. No leaks, no foul!
The U.S. Department of Justice calls the leaks “irresponsible and highly troubling” and told the Los Angeles Times, “There seems to be an inappropriate effort to influence public opinion about this case.”
Almost all of the “leaks” came from those who wanted Wilson charged. The “eye witnesses” accounts of whose whose testimony was either in error or outright lies were reported as factual by scores of reporters and “Black Spokepersons.” Take a look at the liberal AP article on some of these at https://voices.wustl.edu/job-darren-wilson-grand-jury.. How DOJ can complain after the statements of Eric Holder is beyond me
Ok this is a perfect example of putting focus on something that at the end of the day is irrelevant ! I RECOGNIZE THERE WILL ALWAYS BE FOLKS LIKE YOU WHO DO THIS. leak or no leak is not the issue that matters most about this case. btw you know this already…
the issue is that at that distance from wilson he didn’t have the right to use deadly force against Michael Brown who was unarmed. end of issue that has been so twisted the cop got away with it in a country that has allowed this to happen ofr over 75 years.
Get over it! It’s over. Thug attacks cop…thug dies! It’s a simple equation
This article seeks to rationalize the extraordinary misuse of a grand jury by prosecutor McCulloch. McCulloch makes much of the fact that “all the facts” were presented to the grand jury, and that he was the arbiter or what should be presented. So, what was his role? He functioned as a judge would in a jury trial, deciding what could be entered as evidence, and what couldn’t. There was no adversary process, as would have been in a jury trial, and is the bedrock of American justice. In a trial, both the prosecution and defense are able to present evidence and call witnesses, and are able to cross-examine the other side’s witnesses.
Perhaps more important, all evidence and testimony presented in a trial are public, and the trial itself is public. Now that the Grand Jury has voted “no bill,”McCulloch claims that he’s going to release a lot of the testimony and evidence. But he gets to decide what’s made public, and what’s kept secret.
Grand Jurys generally do what the Prosecutor wants them to do, which is usually to indict a suspect, or maybe even a ham sandwich. In the case of a policeman killing a member of the public, it’s typical for the prosecutor to do a pretty lackluster job, because he works with the police, and they are part of the same team.
Trust does not equate to the issues you outlined for trusting that Grand Jury. Yes, you’re a legal expert who know how to frame words to suit your argument. Yet, with that said you also know what i have said is true, which makes what you have said a Lie. Even if it’s not a malicious preconceived one it’s still not true.