The grand jury considering the shooting of 18-year-old Michael Brown in Ferguson, Missouri, is being investigated for misconduct based on messages posted to the social media website Twitter last week.
Andrew D. Leipold is the Edwin M. Adams Professor of Law at the University of Illinois and an expert on criminal law and the judicial process. Leipold, who also is the director of the Program in Criminal Law and Procedure at Illinois, spoke with News Bureau business and law editor Phil Ciciora about how grand juries work.
If a grand juror is indeed talking about a case outside of the courtroom, what’s next? Remove the juror, or start from scratch and empanel a new grand jury to ensure fairness?
Both of those options would be on the table. And it wouldn’t be the prosecutor who removes the juror, but the judge who oversees the grand jury, the one who swore the grand jurors in and then resolves any difficulties that arise during the proceedings. If the judge found that it was just one bad apple and the investigation is close to concluding, the judge might say, “Proceed with 11 grand jurors.” It wouldn’t taint the other jurors if only one was talking out of school.
On the other hand, if an investigation reveals that other grand jurors are not following their duty to keep the information secret, how do we know they’re following the other rules? In that case, a judge may conclude that it’s best just to start over and empanel a new grand jury, to ensure the integrity of the proceedings.
How often do grand jury leaks occur?
Very rarely – that we know of, at least. Do grand jurors ever go home and talk to their spouse or friends? It would be astonishing if they didn’t. But most of the time, I think grand jurors take their oath of confidentiality very seriously and don’t talk about things outside of the jury room.
Keep in mind that the confidentiality of a grand jury only extends to the prosecutor and the jurors. Witnesses are exempt. It seems as though this leak is coming from a grand juror, but it also could be coming from a witness who has testified before the grand jury, and there’s nothing wrong with that. Witnesses are free to say whatever they want.
The big advantage to grand jury proceedings is that it allows the government to present evidence in secret, which some have suggested also affords St. Louis County Prosecuting Attorney Robert McCulloch political cover. Do you agree?
There’s surely some truth to that view, but it’s also a little simplistic. Another way of thinking about it is the prosecutor wants the views of the community before making a decision. For a lot of these cases, it’s not a simple yes-or-no question of whether someone committed a crime. It’s a judgment. Was it reasonable or reckless to behave in a certain way? Those are community judgments, and when a prosecutor is genuinely looking for guidance on what the community thinks, one place they can get that from is a grand jury.
There’s the old cliché about a prosecutor being able to indict a ham sandwich. If that’s true, then what (if anything) can we infer from what’s happened so far in the case?
Although that saying is usually employed by someone who’s just been indicted, the larger point is correct: The prosecutor exercises enormous control over the grand jury process, and it is relatively rare when the prosecutor and the grand jury don’t agree on the end result.
Because there are few limits on the evidence that gets presented to the grand jury – there’s no defense counsel to object, cross-examine or present contrary evidence – the prosecutor can almost always get an indictment if they really want one.
Having said that, it is entirely possible that the prosecutor is still trying to understand the case, still presenting evidence, still listening to witnesses, and still deciding whether an indictment is appropriate or not. I would interpret the amount of time that the prosecutor has taken thus far as evidence of caution, given the high-profile nature of the case.
The news reports about the possibility of a leak have sparked calls for replacing McCulloch and appointing a special prosecutor. Would that solve anything?
I’m not sure what that accomplishes. There might be other important reasons to appoint a special prosecutor, but right now it sounds premature. Emotions obviously are raw right now, and I think we need to know a lot more before we reach any kind of judgment on the credibility of any resulting decision.
Another interesting aspect of the proceedings: Before the grand jury convened, McCulloch announced that he would seek a court order to open the evidence to the public if an indictment wasn’t filed. Would such a move have a chilling effect on witnesses?
That was a curious move on the prosecutor’s part, to make that announcement beforehand, because you certainly don’t want to influence the grand jurors. So one interpretation is that he’s trying to get out in front of this, in case there’s no indictment.
A more charitable interpretation is that he’s saying, “Let’s be calm. We are not trying to hide anything. Let the process work, and if there’s no indictment, everyone will know why.”
