A REALISTIC REFORM: THE CASE FOR AMENDING THE ROLE OF THE PROSECUTOR AND THE

GRAND JURY

By: Geoffrey McAleenan

INTRODUCTION

Public trust in prosecutors and the grand jury has been shaken. In the summer of 2014,

two unarmed African American men, Michael Brown and Eric Garner, were killed within weeks

of one another in unrelated matters by white police officers.1 Their stories drew national scrutiny

and the country erupted in protests.2

As the wheels of the criminal justice system began turning, the country patiently waited

for justice to be doled out to two officers who had already been convicted in the court of public

opinion. However, no such day would come. Each grand jury responsible for deciding whether

or not to indict the police officers accused of killing these men found the evidence insufficient to

charge either with a crime. In the eyes of many, there would be no justice.3 As accusations began

flying back and forth about corruption and racism in America, one particular criticism resounded

in the media: the prosecutors and the grand juries had failed.

As a notable jurist observed, prosecutors have so much power, especially over grand

juries, that they could persuade them to “indict a ham sandwich.”4 The failure to secure

indictments in the deaths of Brown and Garner, however, has generated controversy over the

1 See e.g., Timeline: Eric Garner Death, NBC, Dec. 3, 2014, http://www.nbcnewyork.com/news/local/Timeline-Eric-Garner-Chokehold-Death-Arrest-NYPD-Grand-Jury-No-Indictment-284657081.html; Timeline: Michael Brown Shooting in Ferguson, Mo., USA TODAY, last visited Mar. 20, 2015, http://www.usatoday.com/story/news/nation/2014/08/14/michael-brown-ferguson-missouri-timeline/14051827/.2 Landon Jones, How ‘Hands Up, Don’t Shoot’ Could Start a Real Revolution, TIME, Dec. 4, 2014, http://time.com/3618295/eric-garner-ferguson-hands-up-dont-shoot/.3 David B. Rivkin Jr. & Andrew Grossman, Winning civil justice for Michael Brown and Eric Garner, THE WASHINGTON POST, Dec. 12, 2014, http://www.washingtonpost.com/opinions/winning-civil-justice-for-michael-brown-and-eric-garner/2014/12/12/01ab521e-815d-11e4-9f38-95a187e4c1f7_story.html.4 Glenn Harlan Reynolds, Ham Sandwich Nation: Due Process When Everything is a Crime, 113 COLUM. L. REV. 102, 107 (2013).

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power vested in prosecutors and the secrecy surrounding grand juries. The public has called for

more transparency, and the New York state legislature is contemplating changes,5 but these

proposals could be more reactionary than useful.

This paper will examine prosecutorial discretion with an emphasis on the prosecutor’s

role with the grand jury. Part I will provide a factual account of the deaths of Michael Brown and

Eric Garner to provide context to the public outrage and calls for reform. Part II will briefly

discuss the history of the prosecutorial system in this country to fashion a fuller understanding of

the modern state of affairs. Part III analyzes the power of prosecutorial discretion and the grand

jury, which is the root of the current controversy. Finally, Part IV proposes three reforms that

may sufficiently curtail the power of the prosecutor and therefore assuage public concerns of

prosecutorial misconduct and bias, as well as creating safeguards to ensure the grand jury

properly executes its duties.

This is not the first paper to suggest refinements to the prosecutorial system and the grand

jury process. However, it is unique in that this paper strikes a balance between satisfying the

increasing demands for transparency from the contemporary public while maintaining the

discretion and confidential nature the prosecutorial system requires to function effectively.

I. MICHAEL BROWN, ERIC GARNER, AND THE DEMAND FOR TRANSPARENCY

A. The Shooting of Michael Brown

The deaths of Michael Brown and Eric Garner at the hands of police officers drew fierce

public criticism. Both deceased men were black, and both men were killed by white police

officers. Old race-based wounds were re-opened, and the tension between the American public

5Johnathan Blitzer, The Case to Release the Garner Grand-Jury Records, THE NEW YORKER, Mar. 10, 2015, http://www.newyorker.com/news/news-desk/the-case-to-release-the-garner-grand-jury-records.

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and police officers reached a breaking point. The details surrounding each man’s death are

particularly important in light of the public’s reaction when neither police officer was indicted.

Michael Brown was eighteen years old at the time of his death. On the day in question,

Brown was recorded on a convenience store surveillance camera stealing cigarillos and

physically accosting the proprietor.6 Officer Darren Wilson was in the area around the same time

responding to an unrelated matter, but he heard police dispatch report the crime and he began

searching for the suspect.7

What happened next is at the heart of the controversy over Brown’s shooting and death.

Witness reports vary drastically, but, according to Wilson, he approached Brown and a friend,

believed to have been involved in the robbery, walking down the middle of the street.8 Wilson

approached the two men in his vehicle, ordered them to move to the sidewalk, but Brown

apparently refused.9 Wilson noticed that Brown had cigarillos in his hand, and he reasoned that

Brown and his friend were the two suspects accused of robbing a local store.

Wilson claimed that he tried to get out of his car to detain the pair, but Brown slammed

his car door shut and then a struggle ensued.10 Brown struck Wilson in the face and attempted to

grab his weapon. In the struggle, Wilson discharged his weapon twice, with one round striking

Brown through the door of Wilson’s police vehicle.11

6 William Freivogel, What We Know -- And Don't Know -- About Michael Brown's Shooting, ST. LOUIS PUBLIC RADIO, Oct. 30, 2014, http://news.stlpublicradio.org/post/what-we-know-and-dont-know-about-michael-browns-shooting.7 Interview by George Stephanopolous with Darren Wilson, available at http://abcnews.go.com/GMA/video/exclusive-watch-george-stephanopoulos-full-interview-police-officer-27186831.8 Dept. of Justice Report Regarding the Death of Michael Brown, available at http://www.cnn.com/2015/03/04/politics/document-justice-department-brown-shooting/index.html.9 Id.at 12.10 Id.11 Id.at 13.

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After the shots were fired, Brown fled, and Wilson pursued him on foot. Again, witness

reports vary dramatically, but according to Wilson, Brown eventually turned around and refused

to follow Wilson’s instructions.12 Wilson claims that Brown began to charge at him, and Wilson

fired two bursts of shots, with a final bullet striking Brown in the head and killing him.13

Several weeks later, a grand jury heard evidence in the shooting of Brown to determine

whether Officer Wilson had committed a crime.14 In an unprecedented move, St. Louis County

Prosecuting Attorney Robert McCulloch asked the grand jury to hear virtually every piece of

evidence in the case, including witnesses who contradicted Wilson’s account of events.15

McCulloch declared from the beginning that the proceedings and all materials presented

to the grand jury would be made available in the event there was no indictment.16 The grand jury

reviewed evidence from three autopsy reports, blood-splatter reports, and other physical

evidence.17 In total, the grand jury heard over 5,000 pages of testimony from 60 witnesses.18

McCulloch proposed five possible charges for the grand jury to consider, ranging from

involuntary manslaughter to murder, but the grand jury ultimately elected not to indict Officer

Wilson on any charge.19

12 Id.13 Id.at 14.14 Id.15 Id.16 Paul Cassell, The Michael Brown grand jury process was fair, THE WASHINGTON POST, Nov. 25, 2014, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/25/the-michael-brown-grand-jury-process-was-fair/. 17 Paul Cassell, The physical evidence in the Michael Brown case supported the officer, WASHINGTON POST, Nov. 28, 2014, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/28/the-physical-evidence-in-the-michael-brown-case-supported-the-officer/.18 Catherine Garcia, Wilson testified that Michael Brown looked ‘like a demon,’ punched him multiple times, THE WEEK, Nov. 25, 2014, http://theweek.com/speedreads/441149/wilson-testified-that-michael-brown-looked-like-demon-punched-multiple-times.19 Dana Ford, What charges did Ferguson grand jury consider in death of Michael Brown?, CNN, Nov. 19, 2014, http://www.cnn.com/2014/11/18/justice/ferguson-grand-jury-charges/.

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Days after the grand jury made its decision, McCulloch released thousands of pages of

documents comprising the evidence presented to the grand jury, including expert statements and

testimony from multiple witnesses.20 More witness interviews and audio recordings were also

released in the following months. Despite revealing the majority of the evidence presented to the

grand jury, McCulloch suffered enormous criticism. Many believed McCulloch was biased

because his father, who was a police officer, was killed in an altercation with an African

American.21 Additionally, beyond the natural kinship between police officers and prosecutors,

McCulloch had several family members who served in the St. Louis County Police Department.22

Even though McCulloch himself did not conduct the grand jury proceedings, he had direct

oversight and control, and the mountains of evidence presented to the grand jury was seen as a

tactic to prevent them from indicting Officer Wilson.

Some legal analysts viewed McCulloch’s tactic of releasing evidence as a strategic,

blame-shifting move that would protect him from public backlash. When asked about

McCulloch’s actions, one critic remarked, “[it was] a strategic move, it was smart; he got what

he wanted without being seen as directly responsible for the result.”23 Another analyst referred to

the inordinate amount of evidence as a “document dump,”24 but what was perhaps most

detrimental to McCulloch’s credibility was the gentle cross-examination Wilson received about

20 Elise Hu & Renee Montagne, "Ferguson Grand Jury Testimony Made Public", NPR, Nov. 25, 2014, http://www.highbeam.com/doc/1P1-230793905.html.21 Peter James Hudson, Who Killed Robert McCulloch’s Father?, L.A. REVIEW OF BOOKS, Sep. 18, 2014, http://lareviewofbooks.org/essay/killed-robert-mccullochs-father.22 Tom, Gannam, Background of prosecutor in Ferguson case has some questioning probe’s credibility, CBS, Aug. 18, 2014, http://www.cbsnews.com/news/background-of-prosecutor-in-ferguson-case-has-some-suspicious-of-bias/23 David Zucchino, Prosecutor’s grand jury strategy in Ferguson case adds to controversy, L.A. TIMES, Nov. 11, 2014, http://www.latimes.com/nation/la-na-ferguson-da-analysis-20141126-story.html.24 Id.

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the shooting.25 Despite the transparency, the court of public opinion largely felt the prosecutor

failed to do his job.26

B. The Death of Eric Garner

Although the underlying issues are similar, the case of Eric Garner largely contrasts that

of Michael Brown. Garner, an African American male, was suspected of selling loose cigarettes

in Staten Island.27 Two officers confronted Garner, who denied any criminal activity, and he

expressed his frustration that the officers were harassing him. The officers, however, moved to

arrest Garner.

Officer Daniel Pantaleo attempted to restrain Garner by pulling his arm behind his back,

but Garner resisted.28 Pantaleo then put his arm around Garner’s neck, pulled him down, and

pushed his face into the ground while four other officers leapt on top of Garner.29 Garner

repeatedly told the officers he could not breathe, but his complaints were to no avail.30 Garner

died, and the autopsy report specified that the cause of death was “compression of the neck

(choke hold), compression of chest and prone positioning during physical restraint by police.”31

25 David Edwards, "'Fanciful and not credible': CNN legal analyst destroys Darren Wilson's testimony", RAW STORY, Nov. 25, 2014, http://www.rawstory.com/rs/2014/11/fanciful-and-not-credible-cnn-legal-analyst-destroys-darren-wilsons-testimony/. 26 Mike Lillis, Brown family condemns ‘broken system’, 2014 WL 6653456 (citing a myriad of criticism from members of Congress, news outlets, and private citizens). 27 Annie Karni, et al., Two cops pulled off streets, DAILY NEWS, July 18, 2014, http://www.nydailynews.com/new-york/nyc-crime/staten-island-da-man-death-nypd-chokehold-article-1.1871946.28 Id.29 Id.30 Harry Siegel, Did the NYPD Let Eric Garner Die? Video Shows Police Ignored Pleas to Help Him After Chokehold, DEMOCRACY NOW!, Dec. 5, 2014, http://www.democracynow.org/2014/12/5/did_the_nypd_let_eric_garner#.31 Joseph Goldstein & Marc Santora, Staten Island Man Died From Chokehold During Arrest, Autopsy Finds, N.Y. TIMES, Aug. 1, 2014, http://www.nytimes.com/2014/08/02/nyregion/staten-island-man-died-from-officers-chokehold-autopsy-finds.html.

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Unlike the death of Michael Brown, there is little dispute over what exactly happened

because a bystander captured video of the entire ordeal on a cell phone.32 The video evidence

shows Garner arguing with police, resisting, but then one can plainly see Officer Pantaleo grab

Garner by the neck and drag him to the ground, in a move that city officials acknowledged to be

a choke-hold.33 Moreover, the New York Police Department had banned the use of chokeholds

for more than twenty years leading up to the incident.34

Compared to the Brown case, the evidence seemed straightforward and irrefutable: there

appeared to be no threat of danger to the officers involved, video evidence showed the

chokehold, and the medical examiner’s report confirmed the cause of death was the chokehold.

However, a grand jury decided not to indict Officer Pantaleo in the death of Eric Garner. Unlike

the Brown case, precious little information has been released about the grand jury proceedings.35

In fact, only very basic information, such as the length of time the grand jury sat, the number of

witnesses presented by the prosecutor, and the number of exhibits the grand jury considered have

been released.36 A case had been made before a New York Supreme Court Justice concerning the

release of the grand jury materials, but the judge declined to release it.37

Although similar, the Brown case and the Garner case present different issues in our

criminal justice system. The decision not to indict Wilson in the death of Brown has led the

32 Id.33 theguardian.com, ‘I can’t breathe’: Eric Garner put in chokehold by NYPD officer – video, http://www.theguardian.com/us-news/video/2014/dec/04/i-cant-breathe-eric-garner-chokehold-death-video (last visited Apr. 1, 2015).34 Id.35 Al Baker, In Eric Garner Case, Judge Rules Against Release Grand Jury Evidence, N.Y. TIMES, Mar. 19, 2015 http://www.nytimes.com/2015/03/20/nyregion/in-eric-garner-case-judge-rules-against-releasing-grand-jury-evidence.html.36 Blitzer, supra note 5.37 Baker, supra note 35.

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public to question whether prosecutors can be trusted to “seek justice,” and the Garner case has

thrown the validation of the grand jury, especially its veil of secrecy, into sharp review.

II. THE PROSECUTORIAL SYSTEM: A BRIEF HISTORY

The Attorney General and the United States Attorneys are charged with enforcing the

nation’s criminal statutes.38 In similar fashion, state and local governments elect lawyers to

prosecute those that have violated such a jurisdiction’s criminal laws. The prosecutor’s primary

objective is to “seek justice,”39 and the power and discretion their office wields to fulfill this

purpose cannot be overstated. After all, prosecutors are authorized to investigate citizens and

charge them with crimes, the consequence of which upon conviction may be the deprivation of

property, liberty, and even life. However, the American prosecutor has much humbler roots.

Criminal prosecution in this country predates the colonization of the United States, and it

was markedly distinct from the modern system. The first attorney general was appointed in

Virginia in 1643, and each colony had only a single criminal court with a single attorney general

to prosecute on behalf of the government.40

In early colonial times, prosecutors had relatively little power compared to their modern

descendants. The majority of criminal prosecutions occurred by way of a private prosecutor

retained by the victim of a crime, mainly because such actions were not considered as wrongs

against the state, but rather wrongs against the individual.41 Meanwhile, the attorney general was

38 See 28 U.S.C. §§ 516, 547. 39 Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 FORDHAM URB. L.J. 607, 609 (1998). 40 Joan E. Jacoby, The American Prosecutor in Historical Context, PROSECUTOR, Oct-Nov-Dec 2010, at 38.41 See Jonathan Rogers, Restructuring the Exercise of Prosecutorial Discretion inEngland, 26 OXFORD J. LEGAL STUD. 775, 797–98 (2006) (noting that “the recognition of the role of the public prosecutor is still a comparatively recent development in England”).

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authorized to initiate prosecutions on behalf of the government, but such instances were less

prevalent.42

By 1704, however, a system of prosecution by the state had emerged.43 As populations

grew in the colonies, crime correspondingly increased, which led to the development of more

courts and more attorneys to cope with the rising workload. Over a hundred years later, at the

time of the Revolution, the colonies had a system of public prosecution in place that would carry

over into the states after the founding of this country.

The exact origin of the American prosecutor’s power and autonomy is largely

undocumented and unknown. Although the natural assumption might be to attribute our system

of public prosecution to England, like our adoption of its common law system, the Crown did not

implement public prosecution until 1879.44 Instead, competing theories of the origin of the

American prosecutor suggest that it descended from the French procureur publique, the Dutch

schout, and, at least in small measure, the English Attorney General.45

The American prosecutor is similar to the French procureur in that each was exclusively

permitted to bring criminal charges on behalf of the government against those who allegedly

violated the law.46 Despite this similarity, the theory has been criticized on the grounds that

French influence on American society did not become pervasive until after the Revolution, at

which time the American system of public criminal prosecution had already been established.47

Moreover, a critical difference between the procureur and the American prosecutor is that the

42 Jacoby, supra note 40.43 JOHN L. WORRALL & M. ELAINE NUGENT-BORAKOVE, PROSECUTION IN AMERICA A HISTORICAL AND COMPARATIVE ACCOUNT 6 (2008). 44 Jacoby, supra note 40. 45 Id.46 Id.at 39.47 Id. at 40.

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former was part of a national service hierarchy with little autonomy or discretion, whereas the

American prosecutor had great independence and was established at the local level.48

Theorists have also noted the similarities between the early American prosecutor and the

Dutch schout, primarily because both were local positions responsible to regional (or state)

governments.49 However, the Dutch schout possessed the dual authority of sheriff and public

prosecutor, unlike the American prosecutor.50 Additionally, the period of Dutch colonization in

America was relatively brief before its territories were ceded to England, who implemented

English common law.51 Therefore, it is unlikely the schout had dramatic influence on the

American prosecutorial system.

No matter the precise origin, the American prosecutor was the first of its kind. The

prosecutorial system grew further with the advent of the federal prosecutor. The federal

prosecutorial system was created when Congress passed the Judiciary Act of 1789, which

“appointed in each district a meet person learned in the law to act as attorney for the United

States in such district.”52 Under the Judiciary Act of 1789, such an attorney for the United States

was vested with the power “to prosecute in such district all delinquents for crimes and offences,

cognizable under the authority of the United States.”53 True to the tenets of federalism, the

United States government had its attorneys prosecute violations of federal law, while the states

had their attorneys prosecute violations of state law.

While the early American prosecutor possessed far greater independence and power than

his contemporaries, three factors led to prosecutors gaining the authority they have today. First, 48 Id.49 Id.50 Id.51 Id.52 See Judiciary Act of 1789, 1 Stat. 73, ch. 20, § 35.53 Id.

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as discussed earlier, the American prosecutorial system became a public service as opposed to a

private enterprise. Crimes became viewed less as harms caused to a particular individual, and

more as violations of the law that harmed the state and those living under protection of its laws.

Second, Jacksonian Democracy led to election by popular vote of state prosecutors.54 Electing

prosecutors, as opposed to appointing them, made prosecutors accountable to the public who

could vote them out of office if they failed to properly perform their duties. It was also around

this time that state Constitutions began to recognize prosecutors more and more as members of

the executive branch instead of the judiciary.55 Finally, and perhaps most significantly, the courts

began to recognize, validate, and uphold the power of the prosecutor.56 Late 19th and early 20th

century case law is replete with judicial approval of prosecutorial authority and very little

criticisms.57

III. PROSECUTORIAL POWER

The chief responsibility of the prosecutor, be it state or federal, is to seek justice in the

prosecution of criminal offenses.58 As such, prosecutors possess great power and autonomy to

initiate and conduct cases. Prosecutors are granted such wide latitude because “they are

designated by statute as the President's delegates to help him discharge his constitutional

responsibility to ‘take Care that the Laws be faithfully executed.’”59

54 See Jacoby, supra note 40.55 Stephanie A.J. Dangel, Is Prosecution A Core Executive Function? Morrison v. Olson and the Framers’ Intent, 99 YALE L.J. 1069, 1075 (1990).56 Rebecca Krauss, Comment, The Theory of Prosecutorial Discretion in Federal Law: Origins and Developments, 6 SETON HALL CIR. REV. 1, 16-20 (2009).57 See e.g., Jacoby, supra note 40 (quoting Mallory v. Lane, 97, Conn. 132, 138 (1921) (“In all criminal cases in Connecticut, the state is the prosecutor. The offenses are against the state. The victim of the offense is not a party to the prosecution, nor does he occupy any relation to it other than that of a witness. . . .”).58 Green, supra note 39.59 United States v. Armstrong, 517, U.S. 456, 464 (1996) (internal citations omitted).

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As long as a prosecutor has probable cause to believe that an accused person committed a

crime, the decision to prosecute lies with the prosecutor.60 To accomplish these ends, prosecutors

have a number of tools at their disposal to seek justice: (1) the power to investigate, (2) the

power to charge; (3) the power to offer plea bargains; (4) litigation and advocacy, (5) sentencing

recommendations, and (6) appellate advocacy. The power to investigate and the power to charge

are closely linked.61

A. The Power to Investigate

Assisting in the investigation of criminal activity is a relatively recent development under

the prosecutor’s purview.62 A prosecutor has broad authority to decide whether to investigate an

individual suspected of a crime. Since prosecutors enforce criminal laws, it is no surprise that

they work closely with law enforcement--from the local police to federal agencies. Police and

other law enforcement agencies are principally responsible for investigating crimes, but

prosecutors share at least part of that responsibility.

Under the investigative role, the prosecutor provides directions and advice to law

enforcement.63 Specifically, a prosecutor may instruct law enforcement to seek subpoenas,

request search warrants, and select particular witnesses to interview.64 The importance of

prosecutorial oversight grew as more legal constraints were placed on what police could legally

60 Wayte v. United States, 470 U.S. 598, 607 (1985).61 Prosecutors also have the power to offer plea bargains, conduct litigation, recommend sentencing , and engage in appellate advocacy, among other capabilities. However, such are not the focus of this paper, and thus will not be discussed in detail.62 John S. Edwards, Professional Responsibilities of the Federal Prosecutor, 17 U. RICH. L. REV. 511, 517 (1983) (“The federal interest in investigating and prosecuting crime has grown considerably . . . over the last fifty years.”). 63 Leslie C. Griffin, The Prudent Prosecutor, 14 GEO. J. LEGAL ETHICS 259, 267 (2001).64 Rory K. Little, Proportionality As an Ethical Precept for Prosecutors in Their Investigative Role, 68 FORDHAM L. REV. 723, 733 (1999).

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do in their official capacity.65 Even the Supreme Court has recognized the significance of the

prosecutor’s investigative function.66

B. The Power to Charge and the Grand Jury

Closely tied to the investigatory function of the prosecutor is the power to charge an

individual with a crime. This is so because federal prosecutors are constitutionally required to

charge citizens suspected of crimes by way of a grand jury.67 A grand jury consists of 16 to 23

citizens who may serve eighteen-month terms, and it is their responsibility to investigate

suspected criminal conduct and determine whether to charge a suspect. 68

A grand jury serves two functions. First, a grand jury may independently initiate an

investigation into whether a particular person has committed a crime.69 This function is referred

to as the grand jury’s investigative function, and it is sometimes referred to as its sword

function.70 Second, when a prosecuting attorney has compiled sufficient evidence to accuse

someone of a crime, he will present it to a grand jury, which will determine whether to issue an

indictment, otherwise known as a true bill.71 When a grand jury is convened to screen evidence

in this fashion, it is referred to as its shield function.72

In the federal prosecutorial system, the power to indict is vested solely in the grand jury,

and a citizen cannot be brought to trial without first being indicted.73 However, the Fifth

65 Id. at 734.66 See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (noting that prosecutors must sometimes act in an investigative role). 67 The Fifth Amendment guarantees citizens the right to be charged in an indictment by a grand jury. Fifth Amendment. 68 FED. R. CRIM. P. 6(a)(g).69 Grand Jury Law and Practice § 1:7 (2d ed.).70 Id.71 Roger Roots, Grand Juries Gone Wrong, 14 RICH. J.L. & PUB. INT. 331, 346 (2010).72 Id. at 353. 73 United States v. Hinkle, 307 F. Supp. 117, 120 (D.D.C 1969).

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Amendment right to a grand jury indictment is not incorporated against the states.74 Even though

grand jury indictments are only constitutionally guaranteed in federal proceedings, virtually

every state in the Union employs a grand jury in at least some limited capacity,75 and nearly half

the states still require a grand jury indictment for certain serious crimes.76 The remaining

jurisdictions that do not use grand juries charge by information.77 In charges by information, a

judicial officer will hear the evidence supporting the charges at a preliminary hearing to

determine whether probable cause exists to charge someone with a crime.78

Similar to a prosecutor, grand juries have broad discretion to investigate individuals for

criminal activity. As the Supreme Court once observed,

Because [the grand jury's] task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. ‘It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable results of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.’79

With such sweeping authority, one of the most powerful tools available to grand jury is the

subpoena. A grand jury may subpoena a witness to testify before it, and that person is compelled

to testify unless a valid privilege exists.80 Even the target of a grand jury investigation may be

subpoenaed and compelled to testify before a grand jury.81

74 Hurtado v. California, 110 U.S. 516 (1884). 75 Daniel Taylor, Which States Use Criminal Grand Juries?, FINDLAW, Nov. 26, 2014, http://blogs.findlaw.com/blotter/2014/11/which-states-use-criminal-grand-juries.html. 76 Id.77 Id.78 Id.79 Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (internal citations omitted). 80 “The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.” Blair v. United States, 250 U.S. 273, 281 (1919). 81 See id.

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Despite the grand jury’s formidable power, it is the role of the prosecutor and the secrecy

surrounding grand juries that has generated so much controversy. When a prosecutor convenes a

grand jury, he determines what evidence will be presented to it and what witnesses will be called

before the grand jury.82 Additionally, there is no judicial officer present when the prosecutor

presents evidence, nor is the accused unless he has been subpoenaed to testify.83 Moreover,

defense counsel for the accused is also absent during such grand jury proceedings.84 Therefore,

the prosecutor may show the government’s case in a wholly ex parte environment.85

Another facet of the grand jury that skews favor towards securing an indictment is the

application of the rules of evidence. In the federal court system, the rules of evidence do not

apply in grand jury proceedings.86 The significance of this fact cannot be overstated: in the grand

jury context, prosecutors can introduce hearsay statements, character evidence, and myriad of

other prejudicial evidence to secure an indictment. Indeed, the Supreme Court has even held that

an indictment based solely on hearsay evidence does not violate the Constitution.87 As previously

discussed, virtually the only limitation on what sort of evidence may be presented is when

evidentiary privilege is in play. It is small wonder that the grand jury has garnered significant

criticism among academics.88

82 Grand Jury Law and Practice § 4:15 (2d ed.). 83 Id.84 Id.85 Cassell v. Texas, 339 U.S. 282, 302 (1950) (Jackson, J., dissenting).86 FED. R. EVID. 1101(d)(2). 87 See Costello v. United States, 350 U.S. 359, 363 (1956). 88 A “rubber stamp,” a “handmaiden” of prosecutors, a “kangaroo” proceeding, a “mockery,” a “charade,” a “lap dog,” “a tool” of prosecutors, or simply “puppetry” have all been suggested. The American Bar Association, the National Association of Criminal Defense Lawyers, the American Jury Institute and even the U.S. Justice Department have all acknowledged that modern federal prosecutors have much more power over grand jury outcomes than the Constitution's Framers intended.Roger Roots, Grand Juries Gone Wrong, 14 RICH. J.L. & PUB. INT. 331, 333 (2010).

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Many states grant similar power to prosecutors presenting evidence to grand juries, but

there are jurisdictions that apply a range of variations from the federal system. Some states, such

as Michigan, apply the full force of their evidentiary rules in grand jury proceedings,89 but such

states are among the minority.90 Other jurisdictions prohibit a prosecutor from relying

exclusively on ordinarily inadmissible evidence to secure an indictment.91 Largely, however,

most states have liberal evidentiary rules governing grand jury proceedings.92 It should come as

no surprise then how a prosecutor could convince a grand jury to “indict a ham sandwich.”93

The final concern regarding the grand jury process is its secrecy. Grand jury proceedings

are historically closed to the public.94 The Federal Rules of Criminal Procedure place an

affirmative duty on grand jurors, the prosecutor, and virtually anyone else involved in grand jury

proceedings to keep secret what transpires when the grand jury is convened.95 Secrecy is thought

to accomplish a number of goals, which one court summarized as follows:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.96

89 MICH. COMP. LAWS § 768.22 (West). 90 California, Oklahoma, and South Dakota are the only remaining three. See CAL PENAL CODE § 939.6; OKLA STAT ANN 22 § 333; SD COMP LAWS ANN § 23A-5-15. 91 See, e.g. People v. Rodgers, 442 N.E.2d 240, 242–45 (1982). 92 Taylor, supra note 75.93 Reynolds, supra note 4. 94 See Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979). 95 FED. R. CRIM. P. 6(e)(2)(B).96 United States v. Amazon Indus. Chem. Corp., 55 F.2d 254, 261 (D. Md. 1931).

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Defenders of the grand jury system argue that its clandestine nature allows grand juries to

perform their duties; namely, returning unbiased indictments. One court noted that the “[s]ecrecy

of grand jury proceedings is so important that it cannot be broken absent showing for

particularized need for material in order to avoid injustice that is commensurate with both the

need for continued secrecy and policy reasons that justified protecting that secrecy.”97 Many

courts have similarly recognized the necessity for secrecy in grand jury proceedings.98

As is the case with many laws and legal procedures, there are exceptions built into grand

jury secrecy. Prosecutors and defense attorneys alike have initiated litigation over issues they

have encountered with grand jury secrecy,99 and courts, as well as legislatures, have fashioned

exceptions to overcome these obstacles. In fact, Federal Rule of Criminal Procedure 6, which

governs grand juries, has been amended thirteen times since it was adopted in 1944.100 For

instance, the Federal Rules of Criminal Procedure permit defense counsel to interview grand jury

witnesses after their appearances before the grand jury,101 and most jurisdictions grant defense

counsel some amount of discovery from grand jury proceedings.102

While grand jury secrecy remains unsettled in the legal realm, it has recently crossed the

threshold into the public domain, where both grand juries and the role of the prosecutor have

received unfavorable attention. The public demands change, and the government should comply.

97 Markarian v. Alloian, 836 F. Supp. 529, 531 (N.D. Ill. 1993). 98 See, e.g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979); In re Grand Jury Proceedings, Special Sept., 1986, 942 F.2d 1195, 1198 (7th Cir.1991); State of Illinois v. Sarbaugh, 552 F.2d 768, 772 (7th Cir.1977). 99 One complaint noted by Defense attorneys is that the grand jury process provides a wealth of discovery materials they are not present to consider. For prosecutors, the secrecy may prevent them from effectively communicating with individuals from whom they need assistance, but are not entitled to hear grand jury proceedings. See Grand Jury Law and Practice § 5:1 (2d ed.). 100 See FED. R. CRIM. P. 6.101 Federal Rule of Criminal Procedure 6 lists individuals governed by the rule of secrecy, and witnesses are not among them. 102 Grand Jury Law and Practice, supra note 82.

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IV. PROPOSED MODIFICATIONS TO THE ROLE OF THE PROSECUTOR

To be sure, this is not the first paper to propose modifications to the prosecutor and the

institution of the grand jury. Other suggested reforms include requiring prosecutors to present

exculpatory evidence to grand juries, allowing witnesses and targets called in as witnesses access

to legal counsel, and providing more grand juror education vis-à-vis their legal responsibilities.103

Prosecutors may argue that sufficient procedural checks and incentives are already in

place to prevent them from engaging in misconduct. Such a position is not entirely unfounded.

To begin with, the Model Rules of Professional Conduct enumerate special responsibilities

imposed upon the prosecutor.104 The American Bar Association has issued Standards for

Criminal Justice Relating to the Prosecution Function that imposes additional ethical standards

on prosecutors.105

Sanctions and other procedural mechanisms also serve as incentives for prosecutors to

avoid misconduct. Such consequences include dismissal or reversal of a case, excluding illegally

procured evidence by way of a violation of the Fourth Amendment, the risk of attorney

disciplinary hearings, and civil damage actions.106 State prosecutors would argue further that they

are even more accountable than their federal counterparts because their constituents have the

power to vote them out of a job.

Even though a number of safeguards discourage misconduct, public opinion is skewed

from the circumstances surrounding the grand jury decisions not to indict Officers Wilson and

103 Roger Roots, Grand Juries Gone Wrong, 14 RICH. J.L. & PUB. INT. 331, 335 (2010).104 MODEL RULES OF PROF’L CONDUCT R. 3.8. Prosecutors are ministers of justice with a responsibility to ensure that defendants receive procedural justice and that sufficient evidence supports a guilty verdict.105 American Bar Association, Prosecution Function, http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_pfunc_toc.html (last visited Mar. 25, 2015). However, it should be noted that the very first provision describes the standards as a guide rather than as an evaluative tool for identifying misconduct.106 Prosecutorial Misconduct § 1:46 (2d ed.).

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Pantaleo. With mounting public pressure, changes are needed to restore the country’s faith in the

prosecutorial system. The call for change has not gone unheard in New York. One judge has

called on state lawmakers to pass legislation that would open up the grand jury’s secret process

as a means to mend the damage caused in the Eric Garner case.107

However, such an extreme measure would undermine the grand jury’s ability to carry out

its duties, as the assurances of secrecy are what largely allow prosecutors to issue indictments. If

suspected criminals were aware not only that they were being investigated, but also who was

testifying before the grand jury and supplying other evidence, the system and the safety of those

involved in it will be placed in jeopardy. Altering the grand jury process in such an extreme way

opens the door to a variety of other changes, or at least legitimates calls for substantial and

unnecessary modifications. The secrecy of the grand jury needs to remain intact, but the

relationship the prosecutor has with the grand jury is an area where change might help rebuild

the public’s trust.

The following proposed changes, enacted together, could strike an equilibrium between

not unduly burdening prosecutors in their duty to seek justice while satisfying public demands

for change in their office: (1) appoint an unbiased judicial liaison to guide a grand jury through

the presentation of a prosecutor’s case; (2) involve the judiciary at the first stage of grand jury

investigation and empower the judiciary to sua sponte disqualify a potentially conflicted

prosecutor; and (3) permit the victim of a crime, or his next of kin, to request appointment of a

special prosecutor in cases involving government defendants.

107 Rebecca Davis O’Brien, Grand Juries Need Change, New York State’s Chief Judge Says, WALL ST. J., Feb. 17, 2015, http://www.wsj.com/articles/grand-juries-need-change-new-york-states-chief-judge-says-1424223731.

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If implemented together, these proposed changes offer a baseline assurance that grand

juries will not be misled or confused by the evidence or legal standards involved in a given case

in addition to adding two extra layers of protection from prosecutorial misconduct.

A. GRAND JURY LEGAL ADVISOR

An often-cited criticism of grand juries is that they are largely unlearned in the law.108

Potential jurors are given an orientation of sorts when they are called for jury selection, but there

is no universal measurement of education the courts or prosecutors must provide before

convening a grand jury.

Prosecutors are the only legal experts present when the grand jury hears evidence. The

prosecutor decides what evidence to present and how to present that evidence. In the event that

the grand jury has any legal questions, or simply any questions regarding a case, the prosecutor is

the only one available to provide answers.

To avoid undue confusion as well as the pressure to deliver the response a prosecutor

may want to hear, the federal system should adopt, and state jurisdictions should heavily

consider, appointing a Grand Jury Legal Advisor (GJLA) to guide grand juries through the

presentation of evidence.

The concept of a GJLA is not novel. The state of Hawaii and the United States military

make such a person available to grand juries.109 The role of the GJLA is straightforward: this

person is a licensed attorney who serves as an unbiased resource for the grand jury. The GJLA

does not advocate, and she does not represent anyone who testifies before the grand jury.110

Instead, she answers legal questions posed by the grand jury, legal or otherwise. If a fact

108 See, Thaddeus Hoffmeister, The Grand Jury Legal Advisor: Resurrecting the Grand Jury's Shield, 98 J. CRIM. L. & CRIMINOLOGY 1171, 1203 (2008).109 Id. at 1171.110 Id. at 1215-19.

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question is posed to the GJLA by the grand jury, she can direct the jurors to ask those questions

to the witnesses who provided the evidence.

Appointment of the GJLA would be handled by a state judge in which whose jurisdiction

a state grand jury has been convened. In the federal system, a federal district court judge, or, if

that court utilizes Magistrate Judges, would be charged with appointing a GJLA and determining

whether that individual will serve as the GJLA for the duration of the grand jury’s term. Since

the prosecutor controls how a case is presented to the grand jury, it follows that a GJLA should

not come from the prosecutors’ office. Moreover, by necessity, the GJLA would need to be an

expert in criminal law. Therefore, the appointing authority could draw from the either the

criminal defense bar in the appropriate jurisdiction or from a non-profit criminal defense

organization. Even law professors who teach criminal law courses could be eligible to serve as a

GJLA. However, regardless of whoever is selected as GJLA, that person would be bound by the

applicable rules of criminal procedure governing the grand jury process as well as the governing

rules of evidence.

The presence of a GJLA helps restore some of the autonomy grand juries once possessed

because they would no longer have to rely on the prosecutor’s interpretation of the law or facts.

In addition, simply having a GJLA present during the presentation of evidence to a grand jury

helps discourage a prosecutor from engaging in any unethical conduct, such as making materially

false misrepresentations to the grand jury, because the GJLA would be able to point out the

errors or falsehoods.

Another benefit to having a GJLA assigned to a grand jury is expediency. Grand juries

might labor for hours in deliberation and get hung up on either immaterial evidence or issues of

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law or fact that may be completely irrelevant. A GJLA may help a grand jury avoid such pitfalls

and enable them to keep the focus on salient issues.

In sum, retaining a GJLA for the grand jury’s use will significantly decrease grand juror

dependency on the prosecutor and promote fair presentation and treatment of the evidence

presented to the grand jury.

B. JUDICIAL AUTHORITY TO REMOVE A CONFLICTED PROSECUTOR

The second change that should be enacted is to empower judges to remove prosecutors

from grand jury proceedings. Federal judges play only a minor role in the grand jury process, and

the majority of their influence is exercised during juror selection; after that, the judiciary has no

ongoing interaction with the grand jury until after an indictment is or is not issued.

Given the relaxed evidentiary standards inherent in grand jury proceedings, it stands to

reason why judges do not preside over such proceedings in the federal system and that very few

states mandate judicial oversight. Reforming this aspect of the grand jury may be too extreme,

but allowing the judiciary some check on prosecutorial power would be beneficial.

Prosecutors are not required to recuse themselves from a case in which they are

conflicted.111 Instead, the American Bar Association Standards for Criminal Justice Relating to

the Prosecution Function provides language that is entirely permissive, leaving it to the

prosecutor’s discretion to make a final decision as to whether to withdraw from prosecution.112

This creates a problem where a prosecutor’s judgment may be swayed by personal experience or

prejudice, which, as previously discussed, is a source of criticism faced by Prosecutor

McCulloch in the Michael Brown case.

111 ABA, supra note 104.112 Id.

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This proposed amendment to prosecutorial discretion over the grand jury would introduce

judicial oversight before, and only before, a prosecutor begins to show evidence to a grand jury.

Since grand juries typically meet at a regularly slated times each month, a prosecutor intending

to seek an indictment would submit a report and affidavit to a judge randomly selected from the

district or jurisdiction in which he would prosecute. The report would contain a brief summary

identifying only the target of the grand jury and the charges that the prosecutor intends to seek.

The affidavit from the prosecutor would then identify any potential bias, or lack thereof, that he

might have in the case, as well as affirming that any such bias will not affect the prosecutor’s

ability to seek justice. Restricting the power to identify potential biases to prosecutors instead of

criminal defendants or the public at large is a necessary mechanism to prevent what would

otherwise likely result in a multitude of frivolous challenges congesting an already overburdened

court system.

If the judge is satisfied by a preponderance of the evidence that the prosecutor can carry

out his duties in good faith, then the prosecutor may proceed to the grand jury. If, however, the

judge is not satisfied by a preponderance of the evidence that the prosecutor can overcome his

bias, then he may sua sponte disqualify the prosecutor from the grand jury. In that instance, the

conflicted prosecutor must temporarily turn the case over to another prosecutor to present it to

the grand jury. When a prosecutor is disqualified on conflict grounds, the prosecutor’s office

must then effectively screen him from the grand jury process until after a decision to indict or not

has been reached. Finally, if a criminal defendant adduces evidence of preexisting bias the

prosecuting attorney knew of at the time she claimed to be unbiased, the judge who allowed the

prosecutor to move forward may discipline her consistent with the gravity of the deception.

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This judicial mechanism will have a trickle down effect. First, it should deter potentially

conflicted prosecutors from pursuing a case the nature of which they know may compromise

their integrity. Second, it should encourage prosecutors to conduct effective, thorough, and well-

organized investigations into suspected criminal activity so that in the event they are disqualified,

the case may seamlessly shift hands and continue forward. Third, it will reassure the public that

there is a check on prosecutorial discretion as to what cases they can and cannot bring.

C. PERMITTING A VICTIM TO HIRE A SPECIAL PROSECUTOR

The third and final proposed change would empower the victim of a crime, his next of

kin, or anyone with standing to retain a private prosecutor to conduct a criminal investigation and

trial, but only when the prospective defendant is a government employee. This proposal acts as a

final safeguard for a victim allegedly harmed by a government employee to ensure that his case

will be prosecuted fairly.

While this proposal seeks to eliminate prosecutorial bias much like the proposal requiring

prosecutors to submit affidavits verifying their impartiality, it comes with the significant

modification that when an alleged perpetrator is a government employee, the prosecutor has no

ability to convince a court that she is unbiased. The case is removed from prosecution by the

government and the burden is placed on a private attorney, who, along with her client, must

convince the court that a special prosecutor is necessary.

While the American prosecutorial system may not have taken much from this country’s

English roots, introducing the potential for private prosecution into the politically charged legal

atmosphere will alleviate public doubt in a grand jury’s decision whether to indict a government

employee. Prosecutors are heavily criticized for their perceived bias concerning charging police

officers and government officials with crimes. To avoid the risk of a prosecutor improperly or

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apathetically executing his duties, the victims of crimes allegedly committed by a federal or a

state government employee should be able to seek a private prosecutor.

It is imperative to note that application of the private prosecutor rule would be narrowly

confined to the instances where the defendant in question is a state or federal employee who

would be charged in a criminal matter against a private citizen. In every other criminal matter,

the appropriate government prosecutor would handle the case in the ordinary fashion.

The procedure for retaining a private prosecutor would be as follows: the victim of a

crime would file a petition with the court following a reasonable time frame after filing a police

report. The information in the petition must demonstrate by clear and convincing evidence that

the prospective defendant is a government employee, that said person might have perpetrated the

crime the victim alleges, and the victim believes the customary channels of criminal prosecution

will be tainted by the nature of the defendant’s relationship with the prosecutor’s office.

These requirements will give judges discretion to determine whether an alleged victim is

pursuing either a frivolous claim or whether there is a realistic chance that the criminal justice

system cannot effectively execute its duties. When a judge is satisfied that a special prosecutor

should be retained, the petitioning party’s proposed special prosecutor will then schedule an

appearance before the judge with the petitioning party and state on the record her qualifications

as a special prosecutor. If the judge believes the lawyer can competently proceed, the judge will

deputize the special prosecutor as such and vest her with the authority to work with police for the

duration of the investigation and trial. However, in the event that a judge does authorize an

alleged victim’s special prosecutor to handle a case, and if that party’s special prosecutor fails to

secure an indictment, the petitioning party is precluded from resubmitting the case through the

ordinary channels of criminal prosecution.

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This change will have beneficial ancillary effects as well: police officers will no longer

have a safety net in the form of a reluctant prosecutor, possibly a colleague, who will less than

zealously pursue a case against an officer. Additionally, it removes the burden from prosecutors

who might feel undue pressure or risk retaliation from having to prosecute law enforcement and

other government employees. Finally, the public will have greater assurance that failure to indict

a police officer or government employee is due to lack of merit and not lack of effort.

The effect of these three proposed changes to the role of the prosecutor in the grand jury

system, if enacted together, will render prosecutors more accountable and give the public

assurance that the system is not working to protect itself, but rather that it is protecting the

citizenry. However, to ensure that these measures are evaluated and approved of by the public,

each jurisdiction should submit them in the form of legislation to be voted on by publicly elected

officials. In similar fashion, the federal system should only adopt these proposals if they go

through the legislative process.

CONCLUSION

Recent events have shaken public trust in our prosecutorial system shaken. The public

reaction to the grand jury decisions not to indict the police officers responsible for the deaths of

Michael Brown and Eric Garner has created a maelstrom of criticism and mistrust. Change in the

system is needed, but it cannot be so drastic that it undermines the function of the prosecutor and

the grand jury. While there is no panacea for this problem, these proffered changes will help

restore public trust in the prosecutorial system.

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