"We Don't Know Much About It, But We Don't Like It." Eric Garner and Michael Brown No Bills Have People Calling For Grand Jury Reform

In the last two weeks, what was once viewed as a not-so-well known rubber stamp process, has come to the forefront of media outlets and dominated lunch time conversations--the grand jury. Grand juries in Missouri and New York have handed down decisions to not indict in two high profile cases involving police officers and the use of excessive force. The news we hear about the grand jury is rare, but perhaps more rare is how often grand juries don't go forward with an indictment. Former New York state Chief Judge Sol Wachtler once remarked that a prosecutor "could persuade a grand jury to indict a ham sandwich." As people have feverishly been plugging "grand jury" into their Wikipedia search browser, commentators are beginning to ask if now is the time we start looking at grand jury reform.

The Missouri grand jury was made up of 12 randomly selected individuals, and only the St. Louis County prosecutors, those jurors, and a court reporter were present for the presentation of evidence. The Ferguson grand jury proceedings are remarkable for two important aspects of jury service: (1) the grand jury transcripts have been made public; and (2) the transcripts reveal a grand jury who viewed, heard, and ultimately made determinations much like a trial jury arguably passing its probable cause burden. 

Rule 6 of the Federal Rules of Criminal Procedure sets out the extent to which the Grand Jury Proceedings are kept secret. Missouri statute, like the Federal Rules, provides that the grand jury process, deliberations, and the transcript be kept secret. Grand jury transcripts and discussion typically only see the light of day once an indictment is handed down, and even still are subject to very strict protections. Prosecutors, jurors, witnesses, and defense (should they be so lucky to see it) are advised to not to share or disclose those transcripts or discuss them. Rule 6(e)(3)(B) for example states,

            A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information             only to assist an attorney for the government in performing that attorney's duty to enforce                    federal criminal law. An attorney for the government must promptly provide the court that                 impaneled the grand jury with the names of all persons to whom a disclosure has been made,               and must certify that the attorney has advised those persons of their obligation of secrecy                     under this rule.

This practice is indicative of our extreme lengths to ensure the jury process remains shielded from outside pressures, particularly in the grand jury context of bringing cases to trial. However, Bob McCulloch, the St. Louis prosecutor handling the Darren Wilson indictment, promised citizens the transcripts would be released. Just hours the grand jury decision was announced, McCulloch made good on that promise. 

Grand jury isn’t the only process by which a case could proceed to trial. St. Louis County prosecutors could have chosen to go before a judge for a probable cause hearing. That hearing would have been open to the public, and one judge serving as a neutral would have evaluated the evidence to proceed forward. Of course, in the wake of the riots that followed the shooting in Ferguson, Missouri, the obvious concerns are there as well. Juan Cartangena, a contributor to the HuffingtonPost, believes this was the route that should have been taken. He recently posted: 

"Destroy the veil of secrecy by avoiding the Grand Jury altogether and have preliminary hearings in open court to determine indictments in police abuse cases. . . .The District Attorneys in Staten Island and Ferguson both appeared to have conducted full trials instead of probable cause hearings. They worked in the secrecy of the Grand Jury that they control with no judicial supervision in large part because they were prosecuting the very police force that they work with everyday." 

Cartangena's argument that the grand juries conducted full trials touch on another aspect that likely would not have been an issue in a hearing before the judge. The grand jury is tasked with finding probable cause to proceed to trial. It is a trial jury's role to find beyond a reasonable doubt. After, the last three months, the entire nation does indeed feel as if we've been watching the latest HLN trial series. We typically only see all the materials we've seen in a full trial, not the secrecy of a traditional grand jury hearing.  

Would response have been different had we not deferred to the grand jury? Are these precisely the kind of cases panels of our peers need to be thoughtfully looking at? Should we be glad that the Missouri and New York grand juries took such an in depth look at all of the evidence in the case before taking the nation into long trials? These are drops in the bucket of questions these two cases have brought to our nation. What is for certain is the role of grand jurors and how they make their decisions is now a ripe area for study and development.