Cracking Open the Grand Jury Black Box: Recent Cases Show Prosecutorial Misconduct Can Lead to Dismissal of Charges
Recent federal cases in Wyoming and Illinois involving judicial findings of prosecutorial misconduct before the grand jury have resulted in dismissed indictments. In Wyoming, three federal judges dismissed nine felony indictments after concluding that the interim U.S. Attorney made inflammatory and prejudicial remarks to grand jurors that compromised the integrity of the proceedings. In Illinois, the prosecution of the so-called “Broadview Six” collapsed after a federal judge authorized disclosure and review of grand jury materials amid allegations of serious misconduct during the charging process, leading the government to dismiss the remaining charges with prejudice.
These outcomes are noteworthy because courts rarely agree to look behind the grand jury curtain. Grand jury proceedings are secret, and courts generally presume that prosecutors properly present evidence and accurately instruct grand jurors on the law. As a result, challenges to indictments based on what occurred before the grand jury face a high bar. These cases show that, under the right circumstances, defense counsel can persuade courts to review grand jury proceedings and order disclosure of materials that may lead to dismissal of indictments altogether.
Recent Examples of Judicial Findings of Grand Jury Misconduct
- Wyoming
On May 15, 2026, three federal judges in the District of Wyoming dismissed nine criminal indictments based on statements made to grand juries by then-interim U.S. Attorney Darin Smith.[1]
The challenge arose after defense counsel obtained information from a witness who had served as a grand juror. According to the witness, before any evidence was presented, Smith told prospective grand jurors that the cases involved “bad guys” who “did what you are going to hear about,” referred to defendants as “murderers,” and suggested that deliberations would be brief because the evidence was overwhelming.[2] Armed with a detailed affidavit from a defense investigator who interviewed the witness, defense counsel moved to dismiss the indictments, arguing that Smith’s comments improperly undermined the grand jury’s independence and impartiality.[3]
The judges substantially agreed, finding that “[t]his is not a case where a few offhand statements were improperly sprinkled throughout the presentation of evidence in one defendant’s case.” Rather, the court found that “[t]his misconduct began with some of the first words spoken to the grand jury [and] the misconduct continued to penetrate the proceedings in off-the-record conversations, occurring on the breaks between indictments” – conduct they found “deeply concerning.” All nine indictments were dismissed without prejudice.[4]
- Illinois
On May 21, 2026, District Judge April Perry, who was presiding over the “Broadview Six” prosecution arising out of a September 2025 protest outside an immigration detention center near Chicago, stated after reviewing grand jury transcripts that she had “never seen [such] types of prosecutorial behavior before a grand jury.” According to Judge Perry, the transcripts showed, among other things, a prosecutor “putting her personal credibility and trustworthiness on the line in support of the charges,” engaging in substantive communications with grand jurors outside the grand jury room, and excusing grand jurors who disagreed with the government’s case from deliberations. Following those statements, U.S. Attorney Boutros personally appeared before the court and moved to dismiss all remaining charges in the case with prejudice.
Unlike in the Wyoming cases, defense counsel did not begin with evidence of prosecutorial misconduct. Rather, they raised concerns because the government had brought a highly unusual prosecution for conspiracy to impede federal officers under 18 U.S.C. § 372—a statute that defense counsel argued had never been used by the Northern District of Illinois in its more than 150-year history.[5] Those concerns deepened when the government materially altered its theory after indictment. Defense counsel argued that this combination—a novel statute and a significant post-indictment shift—provided a concrete, non-speculative basis to question whether the grand jury had been properly instructed on § 372 and whether it had actually approved the theory the government intended to pursue at trial.[6]
The defense moved for disclosure of the portions of the grand jury transcript reflecting the government’s legal instructions on § 372, or alternatively, requested an in camera review.[7] The court initially ordered production, but the transcripts provided to the court contained redactions. After reviewing the limited materials, Judge Perry directed the government to appear in person with fully unredacted transcripts, together with any presentations or written materials summarizing the law that had been shown to the grand jury.[8] Following her review of the unredacted materials, Judge Perry reportedly concluded that the record reflected evidence of serious prosecutorial misconduct, stating that she had “never seen” similar conduct before a grand jury and that “trust ha[d] been broken.”[9]
Legal Framework
Two longstanding doctrines stand in the way of defense counsel seeking to discover and use misconduct before the grand jury in their cases: grand jury secrecy and the presumption of regularity.
Grand jury proceedings are presumptively secret. As the U.S. Supreme Court explained in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), secrecy protects the integrity of the process, encourages witness candor, prevents interference with ongoing investigations, and shields uncharged individuals from reputational harm. As to the presumption of regularity, courts generally presume that prosecutors properly discharged their duties before the grand jury absent evidence to the contrary.
Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) provides the principal mechanism for overcoming those barriers. The rule permits disclosure of grand jury materials when a defendant shows that a ground may exist to dismiss the indictment because of something that occurred before the grand jury. Courts typically require more than speculation: a defendant must identify objective facts suggesting misconduct and demonstrate a particularized need for disclosure that outweighs grand jury secrecy.
The Wyoming and Illinois cases illustrate that defense counsel seeking to invoke this rule need not begin with proof of misconduct—they need facts that raise legitimate questions about the integrity of the grand jury process. In Wyoming, those facts came from a witness account. In Illinois, they arose from a novel prosecution theory, a post-indictment shift in the government’s legal position, and unusual handling of transcript disclosures.
The cases also underscore an important procedural point. Courts are often far more receptive to requests for in camera review than for demands for wholesale disclosure of grand jury materials. By asking the court to inspect the materials first, defense counsel can minimize secrecy concerns while preserving the possibility of later disclosure if the court identifies evidence of misconduct or other irregularities.
Facts That May Justify Review
Other facts that may raise legitimate suspicion that something went wrong in the grand jury process include:
- Evidence that prosecutors misstated the elements of the offense, the burden of proof, or other governing legal standards. This may arise where the charging theory appears inconsistent with the governing statute, where prosecutors later materially alter their theory of prosecution, or where the indictment itself reflects a misunderstanding of the law.
- Evidence of improper communications between prosecutors and grand jurors outside formal proceedings, including statements that appear to express personal opinions about guilt, pressure jurors toward a particular outcome, or otherwise interfere with the grand jury’s independence.
- Evidence that prosecutors improperly vouched for witnesses, appealed to emotion, introduced inflammatory commentary, or otherwise attempted to influence the grand jury through means other than the evidence itself.
- Evidence suggesting that the grand jury was exposed to attorney-client privileged materials, unlawfully obtained evidence, or other information that should not have been presented to the grand jury—and that the grand jury may have relied on that information in finding probable cause.
- Evidence that grand jurors were excluded from deliberations, removed from participation, prevented from voting, or otherwise denied the opportunity to perform their functions as grand jurors.
- Evidence that prosecutors repeatedly presented the same matter to successive grand juries after a no-bill, substantially changed their theory of prosecution between presentations, or withheld information regarding prior grand jury proceedings in a manner that raises questions about the integrity of the charging process.
- Evidence of discovery misconduct, Brady or Giglio violations, warrant irregularities, misrepresentations in affidavits, or other litigation conduct suggesting a broader pattern of prosecutorial misconduct. While such conduct may occur outside the grand jury context, it can provide a factual basis to suspect similar misconduct occurred during the indictment process.
The common thread is that defense counsel need not prove misconduct to obtain judicial review. Rather, they must identify objective facts that create a reasonable basis to suspect that misconduct or other irregularities may have occurred and that further inquiry is warranted.
Conclusion
The lesson from the Wyoming and Illinois cases is straightforward: defense lawyers seeking to discover grand jury misconduct rarely begin with proof of misconduct. They begin with facts.
In Wyoming, it was a witness account describing specific prosecutorial statements made before any evidence was presented. In Illinois, it was a novel statute, a materially altered theory of prosecution post-indictment, and unusual handling of grand jury transcripts.
Courts remain reluctant to pierce grand jury secrecy, but these cases show that when counsel can identify specific, objective facts suggesting something may have gone wrong, judges may look behind the curtain. The key is not proving misconduct at the outset—it is developing a concrete factual basis to justify further inquiry.
[1] Order Granting Mot. to Dismiss Indictment Without Prejudice as to Michael Scott Hopper, United States v. Hopper, No. 1:26-cr-00028-ABJ (D. Wyo.), ECF No. 43.
[2] Ex. 1 to Mot. to Dismiss, United States v. Hopper, No. 1:26-cr-00028-ABJ (D. Wyo.), ECF No. 23.
[3] Mot. to Dismiss Indictment Due to Prosecutorial Misconduct and Structural Defect in Grand Jury Proceeding, United States v. Hopper, No. 1:26-cr-00028-ABJ (D. Wyo.), ECF No. 23.
[4] Order Granting Mot. to Dismiss Indictment Without Prejudice as to Michael Scott Hopper, United States v. Hopper, No. 1:26-cr-00028-ABJ (D. Wyo.), ECF No. 43.
[5] Mot. for Disclosure of Prosecutor’s Instructions of the Law to the Grand Jury, United States v. Rabbitt, No. 1:25-cr-00693 (N.D. Ill.), ECF No. 143.
[6] Defendant’s supplemental motion to compel disclosure of the grand jury transcripts, Rabbitt, No. 1:25-cr-00693 (N.D. Ill.), ECF No. 118.
[7] Id.
[8] Id., ECF No. 130.
[9] Id., ECF No. 198.
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