Written by: Jeffrey Toobin November 25, 2014
Criminal procedure—the everyday rules of the road—gets a bad rap. It’s said to be rigid, routine, incapable of accommodating the nuances of human behavior. But, as the atypical grand-jury proceedings in the aftermath of Michael Brown’s death illustrate, there is a great deal to be said for prosecutors following the customary rules of their profession.
To recap the relevant facts: Officer Darren Wilson shot and killed Michael Brown, an unarmed eighteen-year-old man, on August 9, 2014, in Ferguson, Missouri. Robert McCulloch, the local prosecutor, had the authority to charge Wilson with a crime; that’s how the vast majority of prosecutions in the area begin. Instead, McCulloch said that he was going to open a grand-jury investigation and, in an even rarer development, present every scrap of evidence produced in the investigation to the jurors for their consideration.
In Missouri, as elsewhere, grand juries are known as tools of prosecutors. In the famous words of Sol Wachtler, the former chief judge of the New York Court of Appeals, a prosecutor could persuade a grand jury to “indict a ham sandwich” if he wanted to. This is certainly true, but it is true, too, that grand juries retain at least a nominal independence. They usually do what prosecutors want, but they are not legally required to.