Breaking News

Cases and controversies: Not your typical grand jury investigation

Today’s news coverage features a vigorous debate over last night’s announcement that a grand jury in Missouri declined to indict police officer Darren Wilson for his role in the death of Michael Brown, an unarmed African-American teenager. Some believe that Wilson clearly should have been indicted for an unnecessary and unjustified killing; others counter that the grand jury process allowed the development of facts which show that Wilson acted well within the rules governing law enforcement and self-defense. In this column – which we hope to make a recurring feature on the blog – I hope to situate this legal news in the context of relevant Supreme Court decisions (here, decisions about how grand juries work), and in doing so help to advance a better understanding of both the news and the law.  

An eye-catching graphic based on data from Ben Cassleman at shows that, at least in federal cases, what happened in this case is extraordinarily rare. Grand juries almost always bring the indictments that prosecutors request. But which way does this cut?

Maybe it goes to show that this case really was the rare one in which the evidence just didn’t support the charges: As Cassleman notes, one “benign” reason why the rare cases that do not result in an indictment often involve police shootings is that prosecutors feel compelled in such cases to bring charges they otherwise wouldn’t bring. (Andrew Sullivan just published a reader’s email to the same effect.) News accounts make clear that there was a lot of conflicting eyewitness testimony; given all the exculpatory evidence, many who are hardly inclined to defend the Ferguson police department have said they can “see why the grand jury would have reason to doubt whether Officer Wilson committed a crime.”

On the other hand, Cassleman says, his graphic might support a theory of bias – either against the minority victim or in favor of the police. It might be that the jurors were just less inclined to believe that Brown was shot for no reason because he is black, or more inclined to believe Wilson because he is white or wears blue. And it might be that prosecutors just “tend to present a less compelling case against officers, whether consciously or unconsciously,” because they (after all) are law enforcement officers too, who consistently work with the police.

What’s missing from this discussion – and the rest of the coverage I’ve seen – is that this grand jury result may have been different from almost any other because the process was unlike almost any other. And that’s because of a contentious Supreme Court decision from two decades ago.

The question in United States v. Williams was whether it is prosecutorial misconduct, requiring the dismissal of an indictment, for the prosecutor to withhold from the grand jury “substantial exculpatory evidence” in his possession that might lead the grand jury to reject the indictment. The Supreme Court said no. Justice Scalia, joined by four other Justices, held that the Constitution does not require exculpatory evidence to be disclosed, even when it is directly contrary to the prosecutor’s theory of guilt. That is partly because the grand jury’s role is not to determine guilt or innocence, but rather to decide whether there is enough evidence of a crime that a conviction is possible. The grand jury itself can say “we’ve heard enough,” and so the Court declined to impose on the prosecutor a burden to present it with all of the evidence.

Justice Stevens dissented, in an opinion that was joined by the other three Justices. For him, the idea of the prosecutor withholding known exculpatory evidence was inconsistent with the grand jury’s historic role in preventing “hasty, malicious and oppressive persecution” and its “function in our society of standing between the accuser and the accused.” Notably, however, even Justice Stevens’s dissent admitted that the prosecutor need not “ferret out and present all evidence that could be used at trial to create a reasonable doubt as to defendant’s guilt.” He suggested that it would be enough to require prosecutors to present evidence known to them that “directly negates the guilt of a subject of the investigation” – a requirement taken from the (unenforceable) United States Attorneys’ Manual.

[Special note for law nerds: The absence of a federal constitutional rule requiring disclosure does not mean that there can be no laws or policies requiring some. Those there may be, but I am not aware of them, and we would have very little idea of how they were implemented in practice given the near-total secrecy of grand jury proceedings. Also, Missouri could have a different requirement under state law, but that appears not to be true.]

What does this mean? It means that when a prosecutor really wants an indictment, you would not expect the grand jury process to look anything like what happened in Darren Wilson’s case. The prosecutor would have no obligation to put forward the conflicting eyewitness testimony, or introduce pictures of Officer Wilson’s injuries – although grand jury members could ask for them if they somehow knew they existed. Instead, the prosecutor could put forward only the first few witnesses corroborating his own theory, along with the evidence that Wilson fired ten shots from a substantial distance away. Eventually, all the exculpatory evidence would have to be shared with the defense before trial, under a line of cases that started over fifty years ago with Brady v. Maryland. But once charges are on the table, the prosecutor has enormous leverage in bargaining for the kind of plea he wants – a case like Wilson’s, for example, might even include the threat of the death penalty.

And indeed there has been a lot of coverage of how prosecutors use their charging authority (which goes more or less unchecked by the grand jury) to bring hugely punitive indictments that allow them to simply bargain for the sentence they want, without ever having to prove guilt beyond a reasonable doubt. One of the critics has actually been Justice Scalia himself.

This is a complicated takeaway for all sides. If you are the kind of person who thinks the police get too much deference for dubious uses of force, while other criminal defendants are too often treated as guilty until proven innocent, you certainly might raise an eyebrow at the likely truth that the prosecutor here gave Wilson a lot more process than the rules require – and than the average defendant seems to get. (In fact, reviewing the end of the last volume of the grand jury proceedings, the prosecutor’s discussion appears almost impartial to a fault – in the literal sense.) But one should think hard about whether that means the rules should change, and everyone should receive more and better legal process, or whether the prosecution instead should have thrown the book at Wilson just because it could. At a minimum, though, we should not get the wrong idea about the grand jury process we have: It protected Wilson because the prosecutor was willing to let it; nothing requires any similar caution in other cases. So maybe this is a case about prosecutorial or institutional bias in which Wilson was treated far too well, or – maybe – it is a case about reviving a much more robust role for the grand jury, so that others get the same legal process on display this week.

Recommended Citation: Eric Citron, Cases and controversies: Not your typical grand jury investigation, SCOTUSblog (Nov. 25, 2014, 3:00 PM),