Ferguson prosecutor vs Justice Scalia on function of grand jury

Many words have been written about the manipulative way Prosecutor Bob McCulloch used the Ferguson grand jury to conduct a one-sided "mini-trial" of Darren Wilson -- introducing "all" the evidence and five options for the grand jury, without recommending one.   

Then allowing the defendent (Wilson) to testify for four hours -- without cross-examination in a friendly, non-adversarial process that almost certainly pre-determined the lack of an indictment.    And note that Wilson had three months since the shooting to hear all the evidence that his fellow police have accumulated, and plenty of legal advice in constructing his story to fit the evidence.   I repeat -- without cross-examination.

To many legal minds and other observers, this was a miscarriage of justice -- and not how the grand jury is meant to be used.

Supreme Court Justice Antonin Scalia wrote the majority opinion in a 1992 case, United States v. John H. Williams, Jr., that addresses the function of the grand jury.  

He wrote at some length to disagree with the lower court finding that:  "'Judicial supervision . . . facilitates . . . the grand jury's performance of its twin historical responsibilities, i.e., bringing to trial those who may be justly accused and shielding the innocent from unfounded accusation and prosecution.'  . . . We do not agree. . . .  To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body.

"It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. . . .  That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side.  As Blackstone described . . . 'the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined.' [citation omitted]. . . .

"So also in the United States.  According to the description of an early American court, three years before the Fifth Amendment was ratified, it is the grand jury's function not 'to enquire . . . upon what foundation [the charge may be] denied,' or otherwise to try the suspect's defenses, but only to examine 'upon what foundation [the charge] is made' by the prosecutor. [citation omitted].  As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify, or to have exculpatory evidence presented."

As far as this grand jury is concerned, there is nothing that can be done.  They made a decision not to indict, and that is final.    Since the prosecutor himself obviously does not want to prosecute, that also makes this process final.

However, this whole process could be considered in a wrongful death civil lawsuit brought by the family or in the Department of Justice investigation into whether there is racial bias or if civil rights were violated in the handling of this case.

Ralph