It’s a tough thing to keep prosecutors accountable to the public, but some people are trying very hard to do just that in the aftermath of Ferguson. One of the grand jurors who failed to indict former police officer Darren Wilson in the death of Michael Brown, for example, wants to make public what happened in the grand jury room. But grand jury proceedings are secret, under both federal and state law, including in Missouri. So last month that juror took legal action seeking to break his silence. Meanwhile, an advocacy group filed a bar complaint against St Louis prosecutor Bob McCulloch for alleged misconduct committed in that same process.
These attempts expose just how difficult it can be to hold prosecutors to any standard of conduct. Most misbehaving prosecutors are never brought to justice, thanks in large part to the law of prosecutorial immunity, which holds that prosecutors cannot be sued for violating citizens’ rights in the courtroom. Until we change that law, courts need to open grand jury records at the request of people like the Ferguson juror “John Doe”.
Prosecutors are totally in control, to an almost dictatorial degree, of key judicial processes – including, as we saw in Ferguson, the grand jury process. Your average citizen on a grand jury usually doesn’t understand the state’s criminal laws, so they rely heavily on the prosecutor to guide their decision, and jurors decide cases only by way of the facts that the prosecutor chooses to reveal. When indictments aren’t handed down – as in the grand jury proceedings of Wilson and Daniel Pantaleo, one of the white cops who killed Eric Garner – it is the prosecutors who are responsible.
In 1976, the Supreme Court held in Imbler v Pachtman that prosecutors are absolutely immune for any activity considered to be “intimately associated with the judicial phase of the criminal process.” That principle has since been challenged with some success in a couple federal suits, but the law for the most part remains in effect.