The grand jury has decided against bringing in a criminal indictment against police officer Darren Wilson in the shooting of Michael Brown on August 9.
The question of who should get to decide whether a case should go to trial for a criminal offense is an important one. We do not want to clog up the courts with cases that should never have been brought but at the same time we need to ensure that people do not escape prosecution because officials in the legal system and law enforcement were protecting them. Grand juries (called such because they consist of a much larger group of people than regular juries) are one of the means that prosecutors use to decide if there is enough evidence to bring a case.
The Fifth Amendment to the US Constitution says that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger”. Using a grand jury to decide whether an indictment should be issued is something that is apparently unique to the US, at least at the current time.
A grand jury operates in secret and the prosecutor who convenes it has great power to control its outcome and such juries almost always bring in an indictment.
Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.
Wilson’s case was heard in state court, not federal, so the numbers aren’t directly comparable. Unlike in federal court, most states, including Missouri, allow prosecutors to bring charges via a preliminary hearing in front of a judge instead of through a grand jury indictment. That means many routine cases never go before a grand jury. Still, legal experts agree that, at any level, it is extremely rare for prosecutors to fail to win an indictment.
“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”
Cases involving police shootings, however, appear to be an exception.
It is unfortunate that St. Louis County prosecutor Robert McCulloch chose the secret grand jury system to decide whether to indict in this case instead of preliminary hearings that are public because if ever a case cried out for maximum transparency, this one did, because of the intense emotions it generated. Recall that the original reason that Brown was stopped by Wilson was for jaywalking. How a trivial offense like that could escalate into Brown ending up dead will be debated for a long time and once more argues for the police to wear bodycams at all times.
From the beginning, McCulloch was suspected of not wanting to indict and calling for secret grand jury hearings only reinforced the suspicion that the fix was in. The voluminous transcript of the grand jury hearings beginning on August 20, 2014 have been released and many people will undoubtedly pore over them to see whether the evidence presented to the jurors was accurate or biased to produce a desired outcome. This is going to take some time.