Does the Fifth Amendment Grand-Jury Protection Still Matter?

By Andrew C. McCarthy

Tuesday, November 25, 2014

A number of commentators have argued tonight, with no challenge by their media interviewers, that even if the evidence was insufficient to indict Officer Darren Wilson, justice would have been better served if the grand jury had indicted anyway. That way, the reasoning goes, we could have had a public trial in the light of day where everyone could have seen that the case was insufficient. That, we are to believe, would have made it easier for the community to accept the result.

The interests of the community, however, are not the only ones in the equation, much less the most important ones. What about the interests of the suspect? Those are the interests the Constitution addresses.

The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

The Constitution does not consider the grand jury to be a rubber stamp. It is a core protection. It stands as the buffer between the government prosecutor and the citizen-suspect; it safeguards Americans, who are presumed innocent, from being subjected to the anxiety, infamy and expense of a trial unless there is probable cause to believe they have committed a serious offense.

And put aside the constitutional argument. Rabble-rousers want Wilson indicted, despite the lack of probable-cause evidence, on the theory that it would be more just to have a public trial in a case where a man has lost his life. But why would it not be equally justifiable to argue that, because a man has lost his life, the ultimate trial jury should also ignore the law and convict, despite an even more stark lack of murder evidence beyond a reasonable doubt? At what point do we stop enabling the grievance industry to override our core constitutional protections?

If we are going to uphold our Constitution, it does not matter that thoughtful commentators suppose a public trial would best serve the community. The Fifth Amendment holds that a person has the right not to be subjected to a public trial – i.e., the right not to be indicted — unless the state can prove to a grand jury that there is probable cause to believe he committed a crime.

Officer Wilson had a constitutional right not to be indicted in the absence of sufficient evidence. That right to individual liberty outweighs the media’s abstract claim that a public trial would serve the public interest.