The announcement of the grand jury’s decision in the Ferguson case could hardly have been worse handled. The prosecutor waited until well after nightfall to make the announcement and the governor, having mobilized the national guard to protect persons and property, kept them in their barracks while the rioters ran wild.
But many on the left are blaming the way the prosecuting attorney, Robert McCulloch, presented the case to the grand jury. Dana Milbank in the Washington Post wrote that
What causes the outrage, and the despair, is the joke of a grand-jury proceeding run under the auspices of McCulloch, the St. Louis County prosecutor. In September, I wrote that it appeared he wasn’t even trying to get an indictment; he had a long record of protecting police in such cases, and his decision not to recommend a specific charge to the grand jury essentially guaranteed there would be no indictment.
A New York Times editorial argued that
Instead of conducting an investigation and then presenting the case and a recommendation of charges to the grand jury, his office shifted its job to the grand jury. It made no recommendation on whether to indict the officer, Darren Wilson, but left it to the jurors to wade through masses of evidence to determine whether there was probable cause to file charges against Officer Wilson for Mr. Brown’s killing.
Former Chief Judge Sol Wachtler of New York once famously said that a district attorney could get a grand jury to “indict a ham sandwich” if that’s what he wanted. Milbank and the Times are essentially arguing that McCulloch should have done exactly that: abuse the grand jury system in order to get an indictment that most people who have looked at the massive amount of evidence he released say would not have resulted in a conviction.
But if grand juries almost always do what the district attorney wants, why do we need grand juries at all? Well, one answer to that question is the 5th Amendment to the Constitution which says that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, …” And as Andrew McCarthy notes in National Review Online the Founding Fathers regarded the grand jury as a core protection:
It stands as the buffer between the government prosecutor and the citizen-suspect; it safeguards Americans, who are presumed innocent, from being subjected to the anxiety, infamy and expense of a trial unless there is probable cause to believe they have committed a serious offense.
But as Judge Wachtler implied, it no longer serves that function and has become deeply and institutionally corrupt. It has become a means for prosecuting attorneys to further their political ambitions. They are almost always elected officials in this country and many successful politicians have begun their careers that way. Thomas E. Dewey and Rudi Giuliani are two examples of politicians who used their position as prosecuting attorneys to quite deliberately generate publicity for themselves and move on to higher office. It was Dewey who invented the “perp walk” with reporters invited to be in attendance when a person was arrested.
Grand juries no longer exist in any other common law country. In England and Wales they were abandoned more than eighty years ago. Nor are there political district attorneys. Instead police take the evidence of a crime to the Crown Prosecution Service, staffed by bureaucrats not politicians, and the CPS decides if there is strong enough evidence and that justice would be served by holding a trial before a petit jury.
The grand jury system is broken and it either needs to be thoroughly reformed in order to provide the needed protection from an overreaching prosecuting attorney or the 5th Amendment needs to be itself amended.