It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.Given this is the function of grand juries it is not surprising that in the vast majority of cases an indictment results from the process:
According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them:
A common criticism of the juries is that the whole process is biased towards the prosecution. As one judge put it:
And William J. Campbell, a former federal district judge in Chicago, noted: “[T]oday, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”In the case of attempts to indict police officers however failures to indict are more common.
The Ferguson prosecutors acted as if the process were a trial and they were defense lawyers rather than prosecutors. Prosecutor Bob McCulloch allowed the accused Darren Wilson to testify on his behalf for hours. Prosecutors also presented jurors with any evidence that might might show his innocence that they could. The aim was to ensure that McCulloch was not indicted. Even prosecutors' preliminary remarks to the jurors make this crystal clear:
And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.
One common criticism of grand juries is that they are not a representative sampling of the community. The Ferguson grand jury was composed as follows:
The Ferguson grand jury is composed of seven men and five women. Nine are white and three are black. They vary by age, socioeconomic status and live in various parts of St. Louis County.Ferguson is predominantly black. However, there are also other negative features of such jurors that make them a very poor vehicle for deciding whether a person should be indicted or not:
".. they do not possess a satisfactory ability to ask pertinent questions, or sufficient understanding of local government and the concept of due process. Unlike potential jurors in regular trials, grand jurors are not screened for bias or other improper factors. They are rarely read any instruction on the law, as this is not a requirement; their job is only to judge on what the prosecutor produced. The prosecutor drafts the charges and decides which witnesses to call."Usually these features of the situation are used by prosecutors to gain an indictment but in this case they are used to ensure that there is no indictment.
Marjorie Cohn, a professor of criminal law and procedure at Thomas Jefferson School of Law and former president of the National Lawyer's Guild said:
“The prosecutor did not want an indictment, and he passed the buck to the grand jury to make that decision. It was clear the prosecutor was partisan in this case, and not partisan in the way prosecutors usually are, which is to get people indicted.”All of this is bad enough but as the enclosed video shows prosecutor Kathi Alizadeh passed out a copy of Missouri law that was declared unconstitutional by the US Supreme Court in 1985. The law allows a police officer to shoot a suspect who is running away to escape arrest. The appended video discusses the issue in detail. Having given the jury this grossly misleading document the jury then heard Wilson's testimony:
The grand jury then listened to Officer Wilson's testimony with the belief that anything he did to Michael Brown would be fully justified legally simply because Michael Brown at some point ran away from Officer Wilson . . . the District Attorney's office allowed the grand jurors to travel back in time to the good old days of American law enforcement when the cops could shoot people for running away . . . .Using this document the jury could hardly decide other than not to indict Wilson since the evidence is clear that at one point Brown was running away.
Weeks later Alizadeh finally discovers that the law she passed out was unconstitutional. Obviously not only are jurors not vetted to see if they are qualified in the process neither are the prosecutors. I am joking of course, Alizadeh was well qualified to do her job. if that job were not obtaining an indictment even if this meant misleading the jury. Alizadeh told the jury in part-- referring to the earlier document that said that police were justified in shooting escaping suspects:
So if you all want to get those out, what we have discovered, and we have been going along with this, doing our research, is that the statute in the State of Missouri does not comply with the case law . . . and so the statute for the use of force to effect an arrest in the State of Missouri does not comply with Missouri Supreme, I'm sorry, United States Supreme Court cases. So the statute I gave you, if you want to fold that in half just so that you know don't necessarily rely on that because there is a portion of that that doesn't comply with the law. (Emphasis added).When a juror asked if the Supreme Court ruling overrides Missouri laws Alizadeh replied:"As far as you need to know, just don't worry about that."
An article in the Examiner sums up the situation quite well referring to Alizadeh:
She never specifically stated that it's unconstitutional to shoot a fleeing suspect simply for fleeing. She handed them a law, and then weeks later, with no clarification, casually mentioned that the law was wrong - but failed to say how it was wrong. And for weeks, the grand jurors had percolating in their minds, while listening to witnesses and weighing testimony, a law that easily exonerated Wilson.The grand jurors can hardly face any blame for not indicting Wilson. The system was set up so that even though the jurors acted in good faith and to the best of their abilities they could hardly decide otherwise than not to indict Wilson. However, the whole affair was a deliberately manipulated travesty of justice in my opinion. The evidence that the system should be indicted is quite strong.