No, you "stand up": why prosecutors should stop hiding behind grand juries.

• Author: Trachtenberg, Ben
• Position: Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

ABSTRACT

This Article argues that prosecutors should not allow grand juries to consider indicting defendants whom the prosecutors themselves believe should not be indicted. To illustrate the problems with this practice, this Article uses the example of St. Louis County Prosecutor Robert P. McCulloch--who encouraged deliberations by the grand jury that heard evidence concerning the shooting death of Michael Brown in Ferguson, Missouri, despite personally believing that Brown's killer, police officer Darren Wilson, should not be indicted. The arguments against allowing grand juries to conduct such needless deliberations include: (1) the exercise wastes the time of citizens forced to serve on grand juries; (2) the deliberations might, despite the prosecutor 's wishes, result in indictments contrary to the interests of justice; and (3) by "passing the buck" to the grand jury, the prosecutor evades accountability for his own decisions.

1. INTRODUCTION

   As he prepared to present evidence to the St. Louis County grand jury that would consider whether to indict Darren Wilson for the shooting death of Michael Brown, St. Louis County Prosecutor Robert P. McCulloch criticized Missouri Governor Jay Nixon for what McCulloch called "doublespeak" concerning McCulloch's role. Nixon had suggested that perhaps McCulloch should recuse himself from the Ferguson case but stopped short of using emergency powers to remove him. "Just make a decision," McCulloch said to Nixon, via media interviews. "Stand up, man up." (1) McCulloch added that Nixon's indecision "undermines everything except the cover that he's pulled over his head." (2)

   Ironically, it was McCulloch's apparent desire for "cover" that eventually helped to undermine public confidence in the grand jury's work. And it was his own failure to "stand up" and take responsibility for the decisions of his office--instead of hiding behind the anonymous lay persons on the grand jury--that deprived Missouri of what the people pay for when they hire a prosecutor. Like some other prosecutors before him in high-profile cases, McCulloch abdicated the usual role of the prosecutor, choosing instead to delegate his responsibilities to untrained citizens with inadequate guidance.

   This Article will discuss the phenomenon of prosecutors declining to recommend action to grand juries in politically sensitive cases. After describing the reasons that prosecutors might prefer to receive a decision from unguided grand jurors--the primary one being an ability to disclaim responsibility for unpopular decisions, particularly when no indictment is returned the Article will argue that prosecutors should resist the temptation to avoid difficult decisions. If a prosecutor believes no indictment is appropriate, she should say so. Indeed, leaving the grand jury to do what it will without any prosecutorial recommendation risks the return of unfounded indictments. It also removes public accountability from one of the most important and sensitive acts of executive discretion. A prosecutor who shifts responsibility to a grand jury need not explain her reasoning with the same care and thoroughness as one who makes her own decision about what action--including a decision not to seek an indictment--is appropriate under the facts and law.

2. PASSING THE BUCK

   In at least a handful of prominent cases, of which the Michael Brown shooting is the most famous recent example, prosecutors have evaded their usual duty of deciding whether a specific case is worthy of prosecution. When a run-of-the-mill case reaches a prosecutor's office (say, when police arrest participants in a bar fight, or a motorist is caught with cocaine, or a dead body is found in suspicious circumstances), some lawyer in the office decides whether to pursue criminal charges. Depending on the case and the size of the office, top management--including the head prosecutor for the jurisdiction--will have more or less direct involvement. As a formal matter, whatever lawyer makes the decision (i.e., whether to prosecute and, if so, what crime to charge) generally acts under the authority of the head of the office--an elected district attorney, a U.S. Attorney, or some such official.

   Some cases go forward, with the prosecutor's office obtaining an indictment or bringing charges another way, such as by information. (3) Other cases end with a decision not to prosecute. Perhaps the bar fight was insufficiently serious to justify assault charges. Maybe the cocaine was found in violation of the Fourth Amendment. The coroner might determine that the death was a suicide. For some crimes in which prosecution is feasible, the office may simply have more important priorities. And in other cases, the suspect simply is not guilty, or there is not enough proof to obtain a conviction.

   In nearly all of the scenarios described above, some person at the prosecutor's office (acting on behalf of the chief prosecutor) takes responsibility for deciding whether to bring charges. If charges are filed, the office is asserting that probable cause exists, and the office is also announcing its implicit policy judgment that a prosecution in this case is a sensible use of public resources. (4) The charging decision can be contested, whether in the criminal court by defense counsel or in the court of public opinion by anyone who wishes to criticize the prosecutor's actions. And if the office decides not to prosecute, then critics of the prosecutor's decision may complain as much as they wish. (5)

   But sometimes the prosecutor passes the buck. In some cases, prosecutors have investigated whether criminal charges are appropriate, referred cases to grand juries, and then--after presenting evidence to the grand juries made no recommendation on whether indictments are appropriate. (6)

   For example, after the July 2014 death of Eric Gamer at the hands of police in Staten Island, New York, a Richmond County grand jury declined to indict NYPD Officer Daniel Pantaleo. (7) Daniel M. Donovan, the county district attorney who oversaw the investigation and the grand jury process, released a statement afterward in which he claimed that in "New York, the District Attorney does not make opening statements, closing statements or arguments to the grand jury, nor attempt to influence its decision." (8) Although this claim cannot be fully literally accurate--the prosecutor attempts "to influence" the grand jury simply by presenting charges and showing evidence--it provides strong evidence that Donovan did not recommend to the Richmond County grand jury that it indict, or that it decline to indict, Pantaleo.

   Similarly, despite personally believing that Wilson should not be indicted for any crime, (9) McCulloch declined to recommend to the St. Louis County grand jury whether it should return an indictment. (10)

3. Why the Buck Should Stop with the Prosecutor

   When...