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58 Howard L.J. 825 (2014-2015)
Should the American Grand Jury Survive Ferguson

handle is hein.journals/howlj58 and id is 857 raw text is: ESSAY Should the American Grand Jury Survive Ferguson? ROGER A. FAIRFAX, JR.* The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied. This is a story inspired not by recent events in Ferguson and Staten Island, but by the seventeenth century royal prosecutions of Stephen Colledge and the Earl of Shaftesbury, who had grappled with King Charles II over religious influence.' The London grand jurors' resistance of the monarchy established the grand jury's reputation as a robust check on governmental power.2 By the time the grand jury crossed the Atlantic and was used to resist loyalist prosecutions of American colonists, it had earned the prestige worthy of enshrine- ment in the Bill of Rights.' That was then. Today's grand jury is the target of tremendous criticism. Typecast by competing narratives of pliant ineffectiveness and unaccountable power, the grand jury has long been a frequent whipping boy within * Professor of Law and Senior Associate Dean for Academic Affairs, George Washington University Law School. This essay was prepared for the Criminal Law Research Collective workshop at Howard University School of Law. Special thanks to Dean Danielle Holley-Walker for her kind invitation and to the editors of the Howard Law Journal for their professionalism and hard work in publishing this mini-symposium on Ferguson. 1. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1, 9 (1996); see also Roger A. Fairfax, Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV. 703, 721-22 (2008). 2. See Roger A. Fairfax, Jr., The Jurisdictional Heritage of the Grand Jury Clause, 91 MINN. L. REV. 398, 409 (2006). 3. See id. at 410-12; Roger A. Fairfax, Jr., Grand Jury Innovation: Toward a Functional Makeover of the Ancient Bulwark of Liberty, 19 WM. & MARY BILL RTs. J. 339, 345-46 (2010). 2015 Vol. 58 No. 3 825

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