Reflecting on the Ferguson Grand Jury

St. Louis County Prosecuting Attorney Robert P. McCulloch speaks during a news conference discussing charges issued against A
St. Louis County Prosecuting Attorney Robert P. McCulloch speaks during a news conference discussing charges issued against Adam Michael Capriglione, Tuesday, April 15, 2014, in Clayton, Mo. Capriglione, 29, of south St. Louis County, has been indicted on 19 felony charges that include forcible rape, forcible sodomy and felony domestic assault. (AP Photo/Jeff Roberson)

Despite much criticism for his conduct in guiding the Ferguson grand jury's investigation into the killing of Michael Brown, District Attorney Robert McCulloch did something fairly remarkable: he allowed the grand jury to hear every piece of evidence in the case to determine whether police officer Darren Wilson was legally justified in shooting Brown to death.

McCulloch departed from the classic use of the grand jury employed by virtually every prosecutor in almost every jurisdiction: Present a one-sided narrative that suffices to gain an indictment that the prosecutor believes is warranted by the evidence. After all, a grand jury isn't a trial jury. It's only a preliminary proceeding for the purpose of articulating a formal charge to require someone to stand trial on a felony charge. Given the prosecutor's expertise and knowledge of the evidence, it is the prosecutor, not a bunch of lay persons, who is uniquely positioned to determine whether a case should go forward. And make no mistake, that's the view of every prosecutor -- and was indeed the authors' view when they were prosecutors.

Examining the considerable amount of evidence heard and evaluated by the Ferguson grand jury, there is certainly much room for debate on whether Prosecuting Attorney McCulloch made a "fair and balanced" presentation of all of the facts to the grand jury. But as noted, it is not a prosecutor's duty to make a "balanced" presentation to a grand jury. McCulloch himself decided that he wanted to tell the Ferguson community and, indeed, the nation -- he certainly knew the nation was watching -- that he was planning to ensure that the grand jury would hear "everything." So, even though a grand jury -- empaneled for the sole purpose of deciding whether to charge someone with a crime -- traditionally only hears the prosecution's side of a case, McCulloch intended to, and did, go much farther than the law actually requires him to do. But why did he do it? That's the real question.

Some observers might argue that McCulloch intended to employ the grand jury in the manner that it was actually intended to be used when the grand jury was first created in the 12th Century by Henry II, as a protector and bulwark for an accused -- a shield against arbitrary and capricious action so that serious criminal charges would only be brought after consideration by a representative body of citizens. To be sure, under a law somewhat unique to Missouri, McCulloch could have simply filed criminal charges against Wilson -- a "Prosecutor's Information" -- without any need to present evidence to a grand jury.

Why did McCulloch opt for a grand jury? And why did he opt to give the grand jury all, or what at least superficially appears to have been all, of the evidence? And why, contrary to every tenet of every prosecutor in the country, as well as the law in most states and the federal system, did McCulloch decide to release the grand jury testimony and evidence for the entire nation to see?

Cynics, both in Ferguson and elsewhere, and perhaps those who believe that Officer Wilson killed Brown in cold blood, are convinced that McCulloch is in the hip pocket of the Ferguson police department. By convening a grand jury that would consider all of the evidence, these critics argue, McCulloch allowed Wilson to present his narrative at the outset, in the hope that the grand jury would decline to charge him with any crime, thus closing the book on this tragic event. And McCulloch's best recourse to make it appear that he was trying to let the chips fall wherever they may -- ostensibly to be seen as making a "fair and balanced" presentation -- was to let a grand jury hear the whole shooting match.

The central irony in this case is that the familiar abuses in the grand jury process typically occur when prosecutors refuse to present all of the evidence and, indeed, hide evidence that might have led a grand jury to refuse to indict - to vote a "no true bill." What is particularly odd about the Ferguson Grand Jury presentation is the complaint that by his decision to present all of the evidence, McCulloch actually dis-served the prosecution. Why did McCulloch take these steps? We do not know, and we are likely never to know.

But here's the rub. One of the most respected legal commentators, Jeffrey Toobin, of The New Yorker and CNN, actually argues that, in giving Wilson "special treatment" and letting a grand jury hear both sides of the case -- indeed, departing from protocol -- McCulloch damaged the public's perception of the grand jury process. Toobin argues that because the customary practice is for prosecutors to basically tell the grand jury only one side of the story -- which has been likened to a procedure that would virtually enable a prosecutor to "indict a ham sandwich" -- McCulloch did the System an injustice by, according to Toobin, in effect acting as Wilson's counsel. Toobin believes that having treated Wilson this way, McCulloch may have allowed him to escape the charge. If Wilson were to escape prosecution, Toobin argues, it should have been because the grand jury -- hearing evidence the way every grand jury hears evidence, i.e, with the prosecution presenting only its side -- elected not to charge Wilson with a crime. In other words, of all the cases McCulloch might have treated differently, it should not have been this one.

Now, maybe it's true that Wilson should have been charged so that a full jury trial could take place (and maybe he would have been found guilty). And maybe it is true that McCulloch did what he did because he was a partisan for the police and wanted to let Wilson off the hook. In essence the Wilson/Brown confrontation raises the fundamental question of whether the grand jury system is flawed and needs to be corrected, or abolished. Should we have a system that allows defendants to be indicted by a grand jury that hears evidence while sitting in the "ham sandwich" mode? And lest we forget, an indictment -- any indictment -- inflicts a heavy blow to a person's life, liberty, and reputation.

Assuming the grand jury still serves a useful function, isn't the answer instead to improve the grand jury system by providing a proper check and balance against wrongful indictments? Would it not be better to allow grand juries to hear all evidence that might exonerate the defendant, or theories of the defense, perhaps which the defense asks be presented? The public would be surprised to know how infrequently a prosecutor presents exculpatory evidence or evidence that is inconsistent with the prosecutor's theory of the case. Can the answer really be -- as possibly intimated by Toobin -- to simply let the case go trial where the whole truth will emerge? It may very well be, as Toobin suggests, that a "fair and balanced" grand jury presentation in every case would be too costly in terms of time and expense. Indeed, it would seem to be duplicative of the trial process.

There is no question that there are many troubling concerns about the Ferguson presentation. Should McCulloch have disqualified himself from the case? Did the presentation go on for far too long? Did McCulloch at his controversial press conference treat Wilson as his client rather than a target of the grand jury's investigation? And perhaps most troubling of all, it appeared from the transcript of his testimony that, in questioning him, McCulloch treated Wilson with kid gloves.

The answers to these questions remain up for grabs, and we'll probably never know the true answers. All we can hope to know is whether something may be gained from this tragic case -- a tragedy whether or not Wilson was justified in killing Michael Brown -- in terms of ensuring that both the public and every defendant get a fair shake before a grand jury. And in that manner, by seeking to remedy the serious flaws in the grand jury -- not just for a particular police officer whose alleged criminal conduct is under scrutiny.