5 Questions on Grand Juries with Law Profs. Jeffrey Fagan and Bernard E. Harcourt

December 04, 2014
Protesters at Ferguson, MO. Photo: Wikimedia Commons

The St. Louis County grand jury decision last week to bring no criminal charges against Darren Wilson, the white police officer who fatally shot Michael Brown, an unarmed African-American teenager, set off a torrent of civil unrest—and a national conversation about failings of the criminal justice system. Nine days later, there came a similar outcome in New York City, when a grand jury did not indict a white police officer whose chokehold contributed to the death of Eric Garner, according to the medical report. Garner was suspected of selling loose cigarettes.

Two criminal law professors at Columbia Law School, Jeffrey Fagan and Bernard E. Harcourt, have been answering questions about legal and procedural aspects of grand jury practice in general, and specifically about the conduct of the grand jury led by St. Louis County prosecutor Robert McCulloch. They discuss what was unusual in that case: “Everything,” they say.

Q. What does a grand jury usually do?

Grand juries are standing juries, drawn from the regular jury pool, ready to hear evidence presented by prosecutors. Rules and procedures vary by jurisdiction, and grand juries issue indictments in almost all cases. Grand jury proceedings are secret, closed to the public and to defense lawyers. In a typical state grand jury proceeding, the jurors, prosecutors, and one or two witnesses — often the reporting officer and the victim (if there is one) – are the only persons in the grand jury room. In complex cases, there may be more witnesses and physical and forensic evidence can be presented. Targets of an investigation rarely appear before the grand jury.

The prosecutor presides over the grand jury and instructs the grand jurors on the law. The standard for indictment is probable cause, which the U.S. Supreme Court has defined as “not a high bar. It requires only the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” A grand jury decision is not a “verdict.” A petit jury returns a verdict after hearing all the evidence at a trial.

Q: What exactly did the grand jury decide in the Michael Brown shooting?

The St. Louis County grand jury returned a no bill of indictment against Wilson in the shooting death of Michael Brown. It did not find that a crime did or did not take place. Another grand jury could return a different outcome should the matter be re-introduced at a later time.

Q: What was unusual about the grand jury proceedings in the Michael Brown shooting?

Everything. The proceedings resembled a trial rather than a grand jury proceeding. About 60 witnesses were called during almost 75 hours of proceedings. Transcripts show that the prosecutors cross-examined potential prosecution witnesses, probing for inconsistencies in their testimony. They were openly skeptical of the testimony of others. Wilson, the subject of the grand jury proceeding, presented four hours of testimony. He was not rigorously cross-examined. An assistant district attorney gave inaccurate and misleading instructions to the grand jury about whether officers can kill a fleeing suspect without considering the officer’s fear of life. She cited a Missouri statute that was overturned by the U.S. Supreme Court in 1985. She corrected the record weeks later, long after Wilson testified. Contrary to normal practice, the prosecutors did not recommend which charges the grand jury should consider, leaving that to the grand jurors. Prosecutors also made public some 5,000 pages of transcripts from the proceeding, something that is extremely rare.

Q: Do grand jury proceedings tend to be different in police shooting cases?

In most large jurisdictions, a grand jury reviews every police-involved homicide. State grand juries are more likely to excuse a police officer in the shooting death of an unarmed civilian. Missouri law gives extraordinary deference to police-officer discretion, authorizing deadly force if the officer “reasonably believes” it is necessary “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.” From 1990-2012, the year before Bob McCulloch was elected prosecuting attorney in St. Louis County, there were 112 fatal shootings of civilians by police officers; 80 of the victims were black. Five cases involving police shooting citizens were presented to a grand jury; none resulted in an indictment.

Q: Does the case end here?

The decision not to indict does not trigger double jeopardy protections. A subsequent grand jury, or a specially appointed independent prosecutor presenting evidence to another grand jury, could revisit the case and issue an indictment. In addition, a federal prosecution would not raise a double jeopardy issue; there could be a U.S. Department of Justice civil rights investigation of the police officer in the Brown case. The department already has an ongoing investigation into patterns and practices of use of force and racial discrimination in Ferguson. The family of Michael Brown may also bring a civil wrongful death lawsuit.

— Interviewed by Columbia Law School News