The Ferguson, Missouri community along with the rest of the country anxiously awaits the apparently imminent decision of the St. Louis County, Missouri Grand Jury as to whether to indict Ferguson Police Officer Darren Wilson, i.e. whether there is probable cause to believe that when Michael Brown was shot by Ferguson Police Officer Darren Wilson, a crime was committed and Officer Wilson committed it. The Grand Jury continues its deliberations in the absolute secrecy which the law requires and which custom and habit perpetuate.
Because of this secrecy regardless of what the decision of the St. Louis County Grand Jury is in the Michael Brown case, the citizens of Ferguson, Missouri as well as those of us outside that community who are interested, will never know how or why that decision was reached. For that reason, no particular official including the elected Prosecutor will be able to be held accountable for the decision. The composition and identities of the Grand Jurors will also remain undisclosed as will the nature and quality of the evidence they considered.
Under the circumstances in the context of the history of this case that secrecy and the lack of accountability which inevitably must accompany it should raise serious questions about the utility of the aging institution of The Grand Jury not only in the State of Missouri, but also in our own State of Maryland.
The institution of The Grand Jury needs to be reexamined and restructured if we are to effectively insure that the unique functions that it has historically performed continue to be carried on. This means that we must determine which of the functions that The Grand Jury now performs should be transferred to other offices or individuals who can perform them more efficiently, economically and with greater transparency.
The Grand Jury in Maryland has plenary power. However, for quite some time it has seldom exercised anything more than its routine power of approval or disapproval of those matters laid before it by our State’s Attorneys’ Offices. The Grand Jury existed before the State’s Attorney, and therefore, it has always had the power to initiate its own investigation of any matter. Formerly it did so, even making the accusation itself. Now it acts as little more than an approving body. It may still disapprove a bill or ignore an indictment, but as a practical matter, because of the sheer volume of the work put before it by the State’s Attorney, this is typically the limit of its independent inquiry. This is the principal reason that there is serious doubt as to whether The Grand Jury performs any useful duties today.
Because of its plenary power, notwithstanding its diminished responsibility, i.e., simply to approve or disapprove an indictment requested by the State’s Attorney without any independent investigation of its own, The Grand Jury in Maryland can indict or refuse to indict regardless of the character of evidence before it. In a case known as Hopkins v State 19 Md.App.414, A.2d 483 (1973), the Court of Special Appeals of Maryland held that an indictment founded on tainted evidence was not grounds for dismissal in Maryland.
In addition, it has been held in Butina v State, 4 Md.Ap.312. 242 A.2d 319 (1966) and Wilson v State, 4 Md. App. 192.242 A.2d 194 (1968) that an indictment may not be challenged on grounds that there was insufficient evidence before the grand jury.
“The Grand Jury, as has been observed, is not a judicial body; it is an accusing body, permitted to act upon knowledge obtained by its members from any source.” Avery v. State, 15 Md. App 520, 529, 292 A.2d 728 Cert. Denied 410 U.S. 977 (1972).
We took the English grand jury for use in Maryland at a time when it was flourishing and fully developed in England. Since our Revolutionary War days, however, The Grand Jury in England has fallen into disuse and has been, in the present century, repealed in England for most purposes. The reasons and causes leading to this result in England are instructive and appear to be reoccurring here.
At about the same time that the grand jury emerged in the 14th century as a definitive institution in England, the factors that would ultimately lead to its virtual abolition in that country in 1933 also had begun to appear.
The Grand Jury was originally created because of its “special knowledge of crimes in its neighborhood.” The Justices’ Quarter Sessions courts used a presenting jury drawn from the body of the county. However, that grand jury came over the years to know less and less of what went on in its county. The justices were able to obtain better information from the high constable of the county through the petty constables which are analogous to our police and other law enforcement agencies. The constable, therefore, soon made the presentments as a representative of the hundred much like the State’s Attorney of Maryland does today.
In England, beginning in the early part of the 19th century, agitation for reform of The Grand Jury started. For example, the grand juries themselves complained bitterly of their desire to be retired. The Middlesex grand jury in its report in 1846 said that it felt it a duty owed, not only to itself but to the court, to offer a respectful representation of its “utter uselessness.” The Grand Jury in England then, as the grand jury in Maryland now, usually considered only what was laid before it, seldom failed to find a true bill, and never inquired beyond what was presented to it. The Grand Jury was sometimes referred to as the grand impediment. George A Beckett, writing in the Comic Blackstone in 1846, had this to say:
“An indictment must always be presented on oath of the grand jury whose grandeur is explained to them by the judge who says ‘gentlemen, you are a very ancient body, you are as old as King Ethelred’ but if they were told they were as old as Methuselah, they would be just as wise. They then hear the evidence which they generally get at by asking twenty questions at once, mistaking the beadle for the witness and examining the doorkeeper every now and then by way of change. If they think the accusation groundless, they write on the bill “Not found’ but they used formerly to endorse the word ‘Ignoramus’ which has been discontinued on account of its seeming to refer less to the bill than to themselves…”
Unfortunately, this description of the grand jury and its functions has a familiar and very recognizable ring to it some 150 years later.
The Grand Jury in England hung on despite efforts to abolish it. There was a great deal of comment, pro and con, for years. In 1885, and again in 1900, the English historians Maitland and Pollack still approved the use of the grand jury. However, the beginning of the end was foreseen in 1917, when on April 2 the grand jury was suspended during World War 1. Again, on December 23, 1921, it was restored to use. In a letter to The London Times on July 13, 1933, Professor Holdsworth spoke out for the grand jury, saying it was still a real safeguard for the liberties of the subject. Finally, on September 1, 1933, as part of criminal proceedings in England, the grand jury was abolished.
It is not completely gone, but it is callable only when needed in two jurisdictions in England. Though established in order to multiply criminal accusations, its chief function by a curious inversion came to be that of diminishing accusations. It came to do badly what it had done well. The English comment on the use of the grand jury elsewhere is as follows: “We took a long time to perform the necessary operation on ourselves, so we must not be critical of other communities for delay, though it is an odd fact that more antiquated English legal procedure still survives in America than here.”
There are serious issues which should be considered, all centering on whether the independence of the grand jury has been or can be preserved in practice as well as theory, whether the secrecy of the proceedings continues to serve the historic purposes for which it was developed including the protection of the innocent, and whether The Grand Jury is presently equipped to handle a large volume of cases and still independently determine if probable cause exists to hold an accused for trial. These are questions that need answers but which are not and should not be subject to judicial fiat. They should be considered as a part of an overall examination of the role of The Grand Jury in our criminal justice system.
I will say, however, that those who properly debate and act on the matters discussed herein, should remember that the bloody battles which took place during the evolution of the institution of The Grand Jury were fought over the issue of its independence. It is this unique and essential characteristic of the grand jury which in the words of a federal judge, “breathes the spirit of a community into the enforcement of law,” that must be preserved if the quality of justice is to ring as true today as when for the first time a group of twelve knights and freemen gathered in some medieval English village to “declare the truth.”