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What's A Grand Jury? How Will It Work In The Ferguson Case?

ferguson march 81614
Linda Lockhart | St. Louis Public Radio

The purpose of a grand jury, in theory, is to protect citizens against unfair and unwarranted prosecutions by the government. In medieval England, it was viewed as a protection against the Crown. Colonists found the institution protected them against unfair English prosecutions and included the right to a grand jury in the Fifth Amendment.

But in practice, the prosecutor who runs the grand jury has a great deal of influence in orchestrating the outcome. A well-worn saying is that a prosecutor could get a grand jury to indict a ham sandwich.

The grand jury that was to begin hearing evidence in the shooting of Michael Brown by Ferguson police officer Darren Wilson is a St. Louis County grand jury. St. Louis County Prosecuting Attorney Robert McCulloch is in charge although his office has said that an assistant will actually be in the grand jury room.

Here’s how the grand jury process works.

How many citizens serve on a grand jury and how are they chosen?

Twelve citizens serve on Missouri grand juries. The presiding judge of the St. Louis County Circuit Court selects the grand jury from a randomly chosen master jury list. Peter Joy, a professor at Washington University Law School, said this "enables the presiding judge to ensure that the grand jury is representative of the community." The oath taken by the grand jurors require they promise not to be motivated by “any hatred, malice or ill will.” (Editor's note: A previous version incorrectly stated that the grand jurors were chosen at random.)

Is the grand jury hearing the evidence in the Brown/Wilson case a special grand jury or a sitting grand jury that has been hearing other matters?

It is a sitting grand jury. Grand juries are chosen three times a year, on the first Monday in January, May and September. That means a new grand jury would be set to begin in a week and a half. In general, the grand jury meets only once a week. So the current grand jury term is likely to be extended to handle the Ferguson case, McCulloch’s office has said.

Is the grand jury proceeding secret?

Yes. It is a crime for a grand juror to disclose grand jury proceedings or evidence. A witness to the grand jury can come outside a grand jury room and say what he or she testified. In the past, after the grand jury had made its decision, McCulloch has sometimes released information about the grand jury proceedings and he has said he will do that in this case.

Does a state prosecutor have to use a grand jury in all criminal cases?

No. The prosecutor could charge Wilson with a crime if the prosecutor believes there is probable cause. In that case, Wilson would have the right to a preliminary hearing in open court where there would be a chance to cross-examine witnesses. Roger Goldman, an emeritus professor at Saint Louis University Law School, says, “Surprisingly the preliminary hearing might be better for defendant, worse for prosecution since where there is a preliminary hearing, the witnesses appear in public, the defense gets in effect a free deposition.”

McCulloch’s office says slightly less than half of the criminal cases go through grand juries. Marcia McCormick, who teaches criminal law at Saint Louis University Law School, says most of the high-level felonies in St. Louis County go through the grand jury. In addition, grand juries are almost always used in cases of alleged police brutality because they allow the prosecutor to gauge the credibility of witnesses.

Even though a grand jury is viewed as giving a prosecutor the advantage, Alex Little, a former federal prosecutor, told Voxthat McCulloch appears to be using the grand jury as a “delaying tactic” that puts off justice for the Brown family.

Is the grand jury process quick?

Not in this kind of case. A run-of-the-mill felony might require less than a day, but McCulloch has said the Brown/Wilson proceeding will take several weeks. He is quoted in the Wall Street Journal saying, “Absolutely everything will be presented to the grand jury. Every scrap of paper that we have. Every photograph that was taken."

Little, the former federal prosecutor, told Vox this approach is more proof that McCulloch is using the grand jury as a delay process.

Will the Brown family lawyers be in the grand jury?

No. The only lawyer in the grand jury rooms is the prosecutor.

Who decides whether to indict, the grand jurors, the prosecutor or the presiding judge?

The grand jury, but the prosecutor’s views are extremely influential. Richard Kuhns, who taught criminal procedure at Washington University Law School, said in an email:

“The prosecutor typically has de facto control over the grand jury. Except for usually minimal instructions from the judge, the prosecutor is the only person the grand jury deals with. The grand jury can decide to call witnesses on its own, but that doesn't happen often. Usually the grand jury is pretty subservient to the prosecutor. If prosecutor wants an indictment, he can almost always get it.”

Does the grand jury have to be unanimous?

No. The votes of nine members are required to find a “true bill” resulting in an indictment being “handed up.” If the grand jury determines there is no probable cause, “No True Bill” is found and the case is over.

Are there evidence limitations?

Almost none. Molly J. Walker Wilson at Saint Louis University Law School said, “It is not an adversarial proceeding – standard rules of evidence don't apply.”

Will Wilson testify?

He will be invited to testify. His lawyer will not be allowed in the grand jury room, but he could ask for permission to talk to his lawyer in the hallway.

What are the possible criminal charges?

Voluntary manslaughter and second-degree murder, experts say. McCormick said, “Depending on what the evidence shows, it could be second degree murder -- knowingly causing death. A prosecutor could decide that the definition of voluntary manslaughter is more appropriate -- knowingly causing death under a sudden passion with adequate cause (an assault on the officer).” If Wilson misjudged the need to use deadly force, his would be an "imperfect defense," lawyers say, and the less serious involuntary manslaughter charge could be returned.

What does Missouri law provide on police use of deadly force?

Missouri law gives police officers broad power to use force to make an arrest or prevent a felon’s escape. It states: “A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only …. when he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested (a) has committed or attempted to commit a felony; or (b) is attempting to escape by use of a deadly weapon; or (c) may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

The law is broader than what the U.S. Supreme Court permits. The court has ruled it is unconstitutional to shoot a non-dangerous fleeing felon. But McCormick said that Wilson still could rely on the state law as a justification in his defense.

“He could say that he believed Brown was an immediate danger to people in the community because of Brown's actions in the moment and/or based on what he believed Brown had done at the convenience store. Moreover, he could say that belief was reasonable because any police officer would believe that a person who committed a forcible robbery would use force against others in order to get away. That is the argument, but it's not clear from the facts that Wilson did believe these things. “

If the state prosecution fails, would there be a federal grand jury?

Yes, if the attorney general decides that an important federal interest was not vindicated by the state prosecution and that there is enough evidence that Wilson intended to violated Brown’s constitutional rights.

The Fifth Amendment guarantees the right to a grand jury. That right only applies to federal proceedings. The Supreme Court has not applied that right to the states.

What if McCulloch was wrong earlier this week when he said that the governor has the power to displace him and appoint a special prosecutor - would the special prosecutor’s prosecution have been legal?

Head shot of Saint Louis University Law school Dean Mike Wolff
Credit Courtesy Michael Wolff
Mike Wolff

Yes, most likely.  Even if Gov. Jay Nixon had appointed a special prosecutor when he did not have the power, a resulting prosecution would most likely be legal because the grand jury has its own statutory authority, McCormick pointed out.

Mike Wolff, the dean of Saint Louis University Law School, said that McCulloch “may very well have been wrong” in saying Nixon could replace him.  But he added, “This is a clever way to have the governor endorse what he is doing. If the governor does not ask him to step aside, McCulloch would take that the governor has no objection to how he is proceeding.

“So I think McCulloch is correct to say that he would step aside if the governor asks him to. After all, why should he stay on the case if he has opposition from the chief elected official of the state? Another question: if the prosecutor steps aside, does that disqualify just him or his entire office? That has never been made clear as far as I can tell.”