The Ferguson shooting and the grand jury system

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.


  1. says

    Yes, Ibis3, another prosecutor could try again for an indictment, either by grand jury or by preliminary hearing. It’s not “double jeopardy” unless a defendant is twice TRIED for the same crime.

  2. Who Cares says

    The problem (as others have already said) is that this grand jury didn’t do what it was supposed to do; That is determine if there is enough evidence to even start a normal trial. Instead they went and decided on a guilty/not guilty verdict.

    Just reading the snippets of the transcripts shows there are competing stories both of which have enough evidence to support a normal court case.

  3. says

    It is unfortunate that St. Louis County prosecutor Robert McCulloch chose the secret grand jury system to decide whether to indict in this case

    Unfortunate for everyone. Imagine (if you can) that Wilson actually may have acted reasonably in self-defense. Wouldn’t he be better off if it had gone to trial, and all the witnesses were examined and cross-examined and he was exonerated by a jury? That’s how it’s supposed to work, isn’t it? Instead, there’s a star chamber proceeding that is clearly designed to protect Wilson from ever being challenged on his story; Wilson gives his testimony in secret to a grand jury and … Well, the problem is: he’s no exonerated. Indeed, many of us (certainly me!) are convinced that he probably was guilty of manslaughter by the very way that the system acted to cover for him.

    If he was innocent, he’d have wanted a trial.
    If he was guilty, everyone else would have wanted a trial.
    Instead, both parties get the worst of the options: no trial implying obvious guilt.

  4. says

    Imagine (if you can) that Wilson actually may have acted reasonably in self-defense. Wouldn’t he be better off if it had gone to trial, and all the witnesses were examined and cross-examined and he was exonerated by a jury? That’s how it’s supposed to work, isn’t it?

    Absolutely. Indeed, even if Wilson wasn’t acting reasonably in self-defense, a trial jury still would have acquitted him, and that still would have had more legitimacy than this. The George Zimmerman verdict has more legitimacy than this.

  5. dickspringer says

    I served on a federal grand jury in New York for two years. In no case did the prosecutor behave at all like Mr. McCullogh. A comment I read elsewhere gets the essence of it. The comment noted that Mr. McCullogh acted as a defense attorney, not a prosecutor. Of course there was no indictment under such circumstances. If the evidence had been presented in the usual way there might or might not have been an indictment but the result would have had more credibility. The same would have been true if a special prosecutor had been named to replace Mr. McCullogh.

    Now the only question is: Which higher office will Mr. McCullogh run for? He would be an ideal Tea Party candidate.

  6. lorn says

    Actually the grand jury system is a trial, a trial of the available evidence to determine if there is a reasonable case to be made for charging Wilson. In some ways, because there is no assumed benefit of the doubt, the grand jury system is tougher than a trial. Ideally it is also a far more fact based procedure with far less room for emotional content and manipulation. It is about figuring out what happened and the limits of evidence.

    Based upon the comparison of multiple witnesses, including many that were far more credible and contradicted the testimony of those most frequently referenced by the media, and the physical evidence, there was little credible evidence that Wilson hadn’t followed police policy and the law. There was no case to be made.

    I haven’t completed reading all that was written, some of this was clear to me from the first. Once the autopsy showed that there were no wounds on the Brown’s back the witnesses claiming he was shot in the back could be completely discounted. Looking closely at the wounds the claim he was shot with hands raise also seemed unlikely if not impossible.

  7. Rob Grigjanis says

    Regardless of Wilson’s guilt or innocence, the system has effectively indicted itself. Again. The US justice system has zero credibility. From Wall Street to Canfield Drive, it kicks down and kisses up.

  8. moarscienceplz says

    From St. Louis County Prosecutor Robert McCulloch’s statement last night:


    So, we are to believe that Michael Brown, unarmed, after two shots had already been fired and he had run away from the cop, then decided to move closer to the cop in a manner that required to cop to use deadly force? OK, maybe Michael decided to commit suicide by cop, but to my mind that possiblity is sufficiently weird to demand a trial.

  9. Mano Singham says

    lorn #7,

    It is a bit of a stretch to call it a trial, since only the prosecutor gets to present the case and has exclusive control over what is presented to the jury in secret with no oversight. Furthermore, as St. Louis University law professor Susan McGraugh says, the person who is the target of a grand jury almost never gets to present his or her side of the case and may not even know that they are under investigation. The fact that Darren Wilson was able to present his side of the story unchallenged already makes this a very anomalous proceeding.

  10. steve314 says

    “So, we are to believe that Michael Brown, unarmed, after two shots had already been fired and he had run away from the cop, then decided to move closer to the cop in a manner that required to cop to use deadly force?”

    Looking through the physical evidence, from the blood trail after Michael Brown turned around he approached the officer at a minimum of 2.8 m/s. This is not staggering or walking, but running.

    It also exactly fits the testimony given by the officer that he though Michael Brown was coming at him in a threatening manner.

    I’m not trying to be argumentative or inflammatory, but that is what the physical evidence showed.

  11. says

    lorn, you are quite mistaken. The grand jury is emphatically not for “figuring out what happened”. That is the trial jury’s job. The grand jury’s job is only to decide on probable cause. In this case, there was conflicting eyewitness testimony, and it is the role of the trial jury to weigh the credibility of each witness. Even before we get into all of the procedural irregularities, the evidence presented without question supports an indictment. Let me put it another way… given precisely the same evidence, but if Darren Wilson was not a cop, he would have been indicted.

    The only reason the grand jury failed to return an indictment is because that is the result the prosecutor wanted. He conducted the proceedings in such a way as to produce precisely this result. Normally, the prosecutor goes in seeking an indictment, and presents only the evidence he needs to get one. In this case, the prosecutor wanted no indictment, and presented the evidence necessary to get that. That’s why he allowed Wilson to testify before the grand jury, where he would be protected from effective cross-examination.

    This case should have gone to trial.

  12. says

    I haven’t completed reading all that was written…

    That’s pretty fucking obvious from your dishonestly narrow focus, and your refusal to acknowledge (among other glaring omissions) that Wilson’s accounts also changed from time to time. You clearly have no idea what you’re talking about.

  13. says

    Lots of us appear to be willing to say that officer Wilson should be tried for his actions, but equally many appear to think that Bill Cosby’s actions shouldn’t be discussed until there is “proof” -- and some of the people offering those contradictory positions are an overlapping set. Humanism: doing it wrong.

  14. dobby says

    I was on a Grand Jury in Ohio many years ago, and this sounds very different from what we did. The job of the GJ is to decide if there is enough evidence to indite, not guilt or innocence. We usually only heard from a law enforcement person, never from the defendant. And usually we did indite. The only time we did not was when we felt that a prosecuter was being overly zealus. And the rules are very different from a jury trial. I knew one of the prosecuters, this would never have been allowed in a jury trial.

  15. md says

    Yes, the proceedings were held in a closed session but all evidence presented to the grand jury is available for the public to review in the proceedings documents. It seems odd that McCullough having presented all the evidence available to the grand jury and then turning around and discussing it in a press conference afterward would be labeled as keeping something secret. What part of the proceedings have been kept from the public?

  16. Mano Singham says


    What was missing were all the nonverbal behaviors of the witnesses and the prosecutor. All the pauses, hesitations, silences, looks, all disappear. Furthermore, we have no assurance that these transcripts are complete and have not been edited.

    These are very important and are why we don’t do similar things for ordinary trials.

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