History of grand juries

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The decision by St. Louis County Chief Prosecutor Robert McCulloch to put the issue neutrally before the grand jury was intended to create a sense of public legitimacy for whatever result followed, and also no doubt to deflect blame from the prosecutor's own exercise of discretion. It failed on both counts -- and with good reason.

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The practice developed into an institution that validated accusations and therefore commenced prosecution. In the era when private individuals could bring criminal charges, the grand jury was a useful check on allegations, assuring that they had enough substance to go forward before the accused would be brought to the dock.

The Founding Fathers believed that grand juries had another use: blocking the government from bringing wildly unpopular prosecutions. In the grips of the republican spirit, the state ratifying conventions insisted on putting the grand jury into the Bill of Rights. That's why the federal government still uses them -- and a big reason that roughly half the states use grand juries in some form.

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All this background is necessary to explain why it was so strange for the prosecutors in Ferguson case to announce that they were going to present evidence to the grand jury and then let it make up its own mind. Prosecutors never treat the grand jury that way. They present a case to the grand jury only if they are actively seeking to prosecute -- then they show the jury the prosecution’s side of the case, and direct the jury to indict if there is probable cause to go forward.

The St. Louis County prosecutors were trying to be clever, repurposing an ancient institution for the contemporary political situation. They seemed to think that, because the grand jury members are drawn from the public, they would create public validation for whatever outcome the grand jury reached.

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Prosecutorial discretion is an enormous power, as President Barack Obama recently demonstrated in another context by his executive order on immigration. To trust prosecutors with this judgment, we need to see them owning the decisions they make. Deflecting responsibility to a grand jury can't solve the problem -- and in Ferguson, it didn't.

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