One more call to respect the time of grand jurors.

• Author: Trachtenberg, Ben
• Position: Response to article by Frank O. Bowman III in this issue, p. 1111 - Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

ABSTRACT

This Article replies briefly to the robust response that Professor Frank O. Bowman III submitted in answer to my earlier contribution to this Issue.

1. INTRODUCTION

   My good friend and valued colleague Frank O. Bowman III has performed a laudable service in taking the time to respond at length to my earlier contribution to this Issue. Among other things, he provides a careful examination of the Missouri grand jury process, including the necessity of the prosecutor's signature for a valid indictment. Further, he offers the perspective of someone who, unlike me, has presented evidence to grand juries and accordingly has a different view on their strengths, weaknesses, and importance to the criminal justice system more broadly. I appreciate the effort and his willingness to engage with my arguments, which he could not "in good conscience leave ... unanswered." (1) Recognizing the limited space remaining in this Issue, as well as the tight schedule under which the Missouri Law Review operates, I will reply here only to a few of Professor Bowman's arguments.

   In particular, Professor Bowman relies heavily on the distinction between a "true bill"--that is, a grand jury finding of probable cause--and a valid indictment. (2) Without denying the technical accuracy of the distinction, I dispute whether the distinction can support all of the weight placed upon it.

   In addition, Professor Bowman advances a policy argument to the effect that grand jury deliberations in sensational cases boost public confidence in the justice system and that dispensing with the ritual would create risks to public safety. Relying on recent events in Cleveland and in St. Louis itself, I dispute this empirical claim.

   Finally, I take a moment to clarify what I did--and what I did not--argue in my earlier Article. (3)

2. THE "CLEFT STICK" OF AN UNWANTED TRUE BILL

   Professor Bowman devotes substantial attention to the Missouri requirement that a "true bill" be signed by the prosecutor before it becomes a valid indictment. (4) His analysis is correct, and I do not dispute it. I do not believe, however, that the distinction invalidates my argument in the manner that Professor Bowman appears to conclude. Indeed, Professor Bowman himself illustrates the hazard inherent in allowing grand juries to deliberate after prosecutors have decided that indictments are undesirable. After writing in the main text that "Mr. McCulloch's silence before the grand jury did not even create a heightened risk that Wilson would be formally charged" because "in the unlikely event it returned a true bill, Mr. McCulloch would decline to sign and file it," (5) he provides a telling footnote:

   Of course, if Mr. McCulloch really was resolved not to prosecute Officer Wilson, return of a true bill would truly have put him in a cleft stick, forcing him to decide whether to take responsibility for overruling the grand jury's opinion or to take what he presumably thought an unwinnable case to trial. But the grand jury did not...