Why Nancy Grace is Right About Ferguson and You Are Wrong: A Look Into a Broken Grand Jury System

I cannot recall a single event in my life that has been as polarizing as the murders of Michael Brown in Ferguson, Missouri and Eric Garner in Staten Island, New York. Not only does everyone have an opinion of these events, but that opinion is held with the conviction of a priest during the rapture. As I talk to more and more people about this, however, it is overwhelming the amount of misinformation that is out there about how grand juries should work and what exactly happened with Officer Wilson’s grand jury.

Grand juries, depending on the jurisdiction, consist of 12 to 23 grand jurors. This group of people is charged with the responsibility of determining whether to indict a person suspected of committing a crime. Being indicted does not mean a person is convicted of anything. It merely means the state is moving forward with its effort to convict the suspect. If the process goes far enough, eventually a trial will occur. In some jurisdictions, only a majority vote of the grand jury is needed to indict; in others, a two-thirds or three-quarters majority is needed.

Because indictments are merely the first stage in the legal proceeding and are basically the state requesting the opportunity to look further into a matter, the legal standard for bringing an indictment is much, much lower than the legal standard needed to convict. At trial, the state would have the burden of proving the suspect is guilty beyond a reasonable doubt. The exact language of the legal standard for grand juries vary by jurisdiction, but the working standard is essentially the same everywhere—i.e., if there is any evidence that the suspect committed a crime, an indictment is brought.

You may be thinking, “Wow, that isn’t much of a standard,” and you’d be right. And that low, low standard is bore out in the percentages of indictments that grand juries actually bring. In 2010, in the federal criminal system (the most recent year for which we have data), federal prosecutors sought 162,000 indictments and failed to receive just 11. That is a success rate of over 99.99%. In New York City, state prosecutors have an indictment rate of 99%. While I could not find numbers for Missouri, there is no reason to think they would be much different.

These numbers should not be surprising. Cases are brought to a grand jury only if the local district attorney believes an indictment is proper. In fact, if a district attorney took a case to a grand jury when he did not believe an indictment was proper, that attorney has just breached his ethical duties, and the decision to pursue an indictment could result in disciplinary action by the state bar. Once the prosecutor decides to present a case to a grand jury, the district attorney does his or her best to present the strongest evidence for an indictment. It is very rare for the accused to testify (I had a colleague who has done thousands of grand jury hearings tell me she has never had the accused testify). If the accused does testify, you can put good money on the prosecutor cross-examining that person seven ways to Sunday. The district attorney (again, seeking an indictment) will not offer or present exculpatory evidence (evidence that makes the accused look innocent). As Nancy Grace has said, in her exasperation at Officer Wilson’s hole-filled story and the grand jury’s failure to indict, “Grand jurors are sheep.” They are “babes in the woods.” It also why, as you have likely heard repeated over and over, any decent district attorney can indict a ham sandwich. As a University of Illinois criminal law professor stated, “If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong.”

What clearly happened in Ferguson (and very likely Staten Island where Eric Garner was killed), is that we had a local prosecutor who did not want the police officer to be indicted, but did not want the political heat of making the decision not to indict. So the district attorney instead sent the case to the grand jury. But remember, the prosecutor should only have done this if he legitimately believed an indictment was proper, and was prepared to work towards an indictment. It is very clear that did not happen with Officer Wilson’s case in Ferguson.

Officer Wilson was allowed to testify in front of the grand jury (very rare) and then the district attorney’s office did not challenge any parts of his story (unheard of). Meanwhile, the district attorney’s office aggressively cross-examined its own witnesses (i.e., those witnesses supporting an indictment). They also brought in witnesses and evidence that did not support an indictment. The district attorney also gave the grand jury the wrong legal standard, and one that had been ruled unconstitutional by the U.S. Supreme Court 30 years earlier. None of this points to a district attorney supporting or working towards an indictment, but rather a district attorney working against an indictment—something that should never happen.

Even if one believes Officer Wilson’s actions were entirely appropriate (even though no one but Officer Wilson can know this), one has to admit that the grand jury process did not work the way it was supposed to in this case.

The question then becomes, “Why didn’t the system work?”

That is a complicated question with a few answers. The biggest reason police officers rarely get indicted is that asking a district attorney to indict a police officer is essentially asking him to indict a beloved colleague. Not only does the district attorney not want to bring injury to the colleague, but he or she fears the repercussions of the other colleagues.

I spent one year working in the largest district attorney’s office in Oregon. Most of my mornings began with meeting police officers to prepare for trial. The police officers needed me to make sure the bad guys they arrested got put in jail, and I needed them to make sure I won the trial. We were very much a team. As time passed, I got to know and admire some of these officers. A sense of camaraderie was built. If I was ever placed in a position where I had to decide whether to indict one of them, I am not sure I could be impartial. In smaller towns, I am sure this phenomenon is only magnified.

Further complicating the process of indicting police officers is that most people respect, or even adore, police officers. Grand jurors, like most people, tend to give police officers the benefit of the doubt. While this benefit-of-the-doubt approach may be a good thing most of the time, it allows bad police officers—who we all know are out there—to literally get away with murder.

While fixing all of society’s problems that led to the tragic deaths of Michael Brown and Eric Garner is something that will take generations to solve (if they are even solvable), the solution to the grand jury system is fairly simple. When police are the target of a potential indictment, we need to remove the indictment process from district attorneys’ offices. Instead, we need these decisions to be placed in the hands of some type of neutral body (or at least the least-biased body we can devise). Police unions will predictably fight such a move with every ounce of their being, but I expect district attorneys would quietly support it—along with most everyone else. Perhaps then, the people in Ferguson, and everyone else, can begin to feel justice is at least possible.

– Dylan

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One Response to “Why Nancy Grace is Right About Ferguson and You Are Wrong: A Look Into a Broken Grand Jury System”

  1. […] It is very different for civilians killed by police. While 33 police are murdered a year, police have averaged at least 400 civilian kills a year since 2008. Of significant note, the exact number of people killed by police is unknown because police do not track and/or release those numbers to the public. Of the hundreds of people police kill a year, there are almost no indictments and even fewer convictions. One county in Texas did a study of this. Over the past five years, district attorneys had turned 25 cases over to the grand jury for indictments for use of deadly force by police. Only one officer was indicted, and in that case he was only indicted for manslaughter (it has not yet gone to trial). That 4% indictment rate of police officers is in stark contrast to the 99% indictment rate of non-police officers. […]

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