No, You "Stand Up": Why Prosecutors Should Stop Hiding Behind Grand Juries

Abstract

This Essay argues that prosecutors should not allow grand juries to consider indicting defendants whom the prosecutors themselves believe should not be indicted. To illustrate the problems with this practice, this Essay uses the example of St. Louis County Prosecutor Robert P. McCulloch – who encouraged deliberations by the grand jury that heard evidence concerning the shooting death of Michael Brown in Ferguson, Missouri, despite personally believing that Brown’s killer, police officer Darren Wilson, should not be indicted. The arguments against allowing grand juries to conduct such needless deliberations include (1) the exercise wastes the time of citizens forced to serve on grand juries; (2) the deliberations might, despite the prosecutor’s wishes, result in indictments contrary to the interests of justice; and (3) by “passing the buck” to the grand jury, the prosecutor evades accountability for his own decisions.

Keywords: Grand jury, grand juries, Robert P. McCulloch, Bob McCulloch, Michael Brown, Darren Wilson, Ferguson, police, recusal, conflict of interest, legal ethics, professional responsibility, criminal procedure, St. Louis, St. Louis County, Eric Garner, Model Rules of Professional Conduct, Model Rule 3.8, M