Vox populi: Robert McCulloch, Ferguson & the roles of prosecutors and grand juries in high-profile cases.

• Author: Bowman, Frank O., III
• Position: Response to article by Ben Trachtenberg in this issue, p. 1099 - Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

ABSTRACT

The decisions of St. Louis County Prosecuting Attorney Robert McCulloch during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, have been criticized on a variety of grounds. In an article written for a Missouri Law Review symposium on the shooting and its aftermath, titled "'No, You Stand Up': Why Prosecutors Should Stop Hiding Behind Grand Juries," Professor Ben Trachtenberg takes Mr. McCulloch to task for allowing the grand jury to deliberate without making a recommendation about whether charges should be filed. Professor Trachtenberg asserts that, at the close of the evidentiary presentation to the grand jury, Mr. McCulloch did not believe there to be probable cause and that, accordingly, McCulloch should either not have allowed the grand jury to deliberate at all or should at the least have recommended against indictment due to lack of probable cause. Professor Trachtenberg strongly intimates that Mr. McCulloch behaved unethically, and he asserts forthrightly that McCulloch acted out of political self-interest and failed to properly fulfill the functions of his office.

Whatever the merits of other criticisms of Mr. McCulloch, Professor Trachtenberg's particular criticisms are unfounded. This Article makes the case that, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson investigation in compliance with Missouri law, violated no ethical rule, and, at least in his office's relations with the grand jury, proceeded professionally and in a manner calculated to promote the public interest.

1. INTRODUCTION

   In an article earlier in this Issue, my good friend and valued colleague Ben Trachtenberg argues that St. Louis County Prosecuting Attorney Robert P. McCulloch acted improperly during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson. (1) Professor Trachtenberg criticizes Mr. McCulloch's decision to ask the grand jury to make a probable cause determination on whether Officer Wilson committed a criminal homicide without providing advice to the grand jury on whether the prosecutor's office believed probable cause to exist. In Professor Trachtenberg's colorful phrasing, Mr. McCulloch was "hiding behind the anonymous lay persons on the grand jury," and "abdicated the usual role of the prosecutor, choosing instead to delegate his responsibilities to untrained citizens with inadequate guidance." (2) In the body of the article, Professor Trachtenberg strongly intimates that Mr. McCulloch's approach violated standards of professional ethics. (3)

   Reluctant though I am to take public issue with Professor Trachtenberg, who combines a penetrating intellect with sparkling wit, I cannot in good conscience leave his case against Mr. McCulloch unanswered. Silence would be unfair to Mr. McCulloch and, more importantly, risks perpetuating a number of pernicious misconceptions about grand juries and the relationship of prosecutors to them. Put plainly, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson grand jury investigation in compliance with Missouri law, violated no ethical rule, and, at least with respect to his office's relations with the grand jury, proceeded in an entirely professional and sensible manner.

   In what follows, I express no view about the heterogeneous array of discontents--many entirely justified--that exploded into national prominence after the Brown shooting and that are consequently, if confusingly, lumped under the heading of "Ferguson." Likewise, I express no view about Mr. McCulloch's personality (which is undoubtedly brusque), his public remarks about the governor (4) (which were, at the least, impolite), the conduct of his office in other cases, his standing with the electorate of St. Louis County, or his media strategy during the Brown-Wilson investigation, including questions about the timing of the announcement of the grand jury decision. Nor do I indulge in speculation about Mr. McCulloch's racial opinions, the effect of the circumstances of his police officer father's death in the line of duty, or other personal matters about which, having never met the man, I cannot possibly know. Professor Trachtenberg criticizes Mr. McCulloch for particular aspects of his conduct of the Brown-Wilson grand jury investigation. I think that criticism unfounded. This Article addresses that point, and that point only.

2. GRAND JURIES AND PROSECUTORS IN MISSOURI

   In the United States, felony criminal prosecutions are instituted in one of two ways: by indictment, which is a formal charge approved by a grand jury upon its finding that the offense stated in the indictment is supported by probable cause, or by information (sometimes called a complaint), which is a formal charge prepared by a prosecutor and filed directly with the court with no prior review by a citizen body. In federal court, the U.S. Constitution requires that all felony prosecutions begin with a "presentment or indictment of a grand jury." (5) This provision of the Fifth Amendment is not binding on the states. (6) Therefore, although all states have some provision for grand juries, (7) less than half use them regularly, and none requires a grand jury indictment in all felony cases. (8) The most usual arrangement--and the one employed by Missouri--is that grand juries may be empanelled, but prosecutors can elect either to introduce evidence to a grand jury and seek its imprimatur on an indictment or they can file charges directly with the court in an information. (9)

   Missouri law governing grand jury practice is limited. Article I, Section 16 of the Missouri Constitution states:

   That a grand jury shall consist of twelve citizens, any nine of whom concurring may find an indictment or a true bill: Provided, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies; but when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime; and that the power of grand juries to inquire into the willful misconduct in office of public officers, and to find indictments in connection therewith, shall never be suspended. (10) Missouri statutes do little more than reiterate the provisions of the constitution. They contain only two significant rules regarding the authority of grand juries: (1) grand juries "may make inquiry into and return indictments for all grades of crimes and shall make inquiry into all possible violations of the criminal laws as the court may direct"; (11) and (2) an indictment may not be returned by a grand jury unless nine of its twelve members concur. (12)

   Curiously, neither the Missouri Constitution nor its statutes specify the standard of proof grand juries should apply in returning an indictment. It is commonly said, and grand juries are routinely instructed, that they are to determine whether there is probable cause to believe the defendant committed the offense charged in an indictment. (13) But a grand jury's decision to return an indictment is not reviewable for insufficiency of the evidence, (14) so, in practice, grand jurors can apply whatever standard seems good to them without fear of reversal.

   Note that Missouri remains firmly in the long Anglo-American tradition of employing grand juries both as a screening mechanism in cases in which the government proposes charges and as an investigative body. (15) Both Missouri's constitution and statutes make clear that a grand jury's powers to investigate are not derivative of any prosecutorial authority. By statute, a Missouri prosecutor has only three functions in relation to grand juries: (1) he may "examin[e] witnesses in their presence"; (16) (2) he may "appear before the grand jury ... for the purpose of giving information relative to any matter cognizable by" the grand jury; (17) and (3) if "required by any grand jury," he must "attend them for the purpose of ... giving them advice upon any legal matter." (18)

   The Missouri Rules of Criminal Procedure add a fourth prosecutorial duty. Rule 23.01(a) requires that indictments "shall be in writing, signed by the prosecuting attorney, and filed in the court having jurisdiction of the offense." (19) Without the prosecutor's signature, a Missouri indictment is legally invalid. (20) This requirement may seem ministerial, but it is a critical grant of prosecutorial control over charging decisions. As the U.S. Court of Appeals for the Fifth Circuit observed about the corresponding requirement of the federal rules:

   The provision of Rule 7, requiring the signing of the indictment by the attorney for the Government, is a recognition of the power of Government counsel to permit or not to permit the bringing of an indictment. If the attorney refuses to sign, as he has the discretionary power of doing, we conclude that there is no valid indictment. It is not to be supposed that the signature of counsel is merely an attestation of the act of the grand jury. The signature of the foreman performs that function. It is not to be supposed that the signature of counsel is a certificate that the indictment is in proper form to charge an offense. The sufficiency of the indictment may be tested before the court. Rather, we think, the requirement of the signature is for the purpose of evidencing the joinder of the attorney for the United States with the grand jury in instituting a criminal proceeding in the court. Without the signature there can be no criminal proceeding brought upon an indictment. (21) In sum, in both federal and Missouri courts, no prosecution can be initiated by the grand jury acting alone. Unless and until an indictment approved by the grand jury is signed by the prosecutor, there is no "charge" against the defendant, no "prosecution " has been initiated, and the defendant has no case to answer. This point is critical to...