The Ferguson Grand Jury: Lessons from the O.J. Grand Jury

By Professor Laurie Levenson

Yes, you read that right. There are lessons from the O.J. Simpson grand jury for the grand jury considering whether to indict Officer Darren Wilson for the shooting death of Michael Brown. Few people remember that the Los Angeles County District Attorney originally convened a grand jury to decide on the fate of celebrity defendant, O.J. Simpson. This was not surprising given that politically controversial cases are often thrown to the grand jury to take some of the heat off a prosecutor in deciding whether to bring charges. Unlike with federal cases, state charges generally do not need to go through the grand jury process. The District Attorney has the power to file charges directly and hold a preliminary hearing to determine whether there is probable cause to support those charges. However, a grand jury provides an elected official cover for making the decision to charge in difficult cases.

Ultimately, O.J. was not charged by the grand jury because they never got the chance to make that decision. The case was removed from the grand jury when the defense complained that pretrial publicity had tainted the grand jury process. Simpson’s lawyers claimed that Simpson’s due process rights would be violated by having a grand jury that had been exposed to the tremendous amount of media coverage and public comment decide whether he should be indicted.

Similarly, one can expect that if Wilson is indicted, his lawyers will challenge whether the grand jury process was tainted. Having a grand jury make its decision in the shadows of a National Guard alert is not an optimal way to run a justice system. The grand jury is supposed to be the buffer for individuals against public cries for justice. However, grand jurors are not immune from this pressure and, in an extreme situations, they may be affected as well. A motion to dismiss a grand jury indictment is almost never granted, but the motion itself will undermine any confidence in charges that are brought. In a case where the whole country is watching, that may be concern enough.

• Read more about the motion to quash the O.J. Simpson grand jury.
• Listen to Professor Levenson's commentary about the Ferguson grand jury on KPCC's AirTalk with Larry Mantle.