THE BLOG
11/18/2014 11:01 am ET Updated Jan 18, 2015

Darren Wilson Ain't No Ham Sandwich: Prosecutorial Manipulation of a Flawed Grand Jury System

Government abuse of the grand jury system has become so notorious and problematic, it caused New York Court of Appeals Judge Sol Wachtler to famously say nearly 30 years ago that if a prosecutor wanted to, a grand jury would "indict a ham sandwich." However, in the case of Ferguson police officer Darren Wilson, who shot and killed unarmed teenager Michael Brown, the prosecutor doesn't necessarily want an indictment. Instead, the St. Louis grand jury and others like it, purportedly investigating killing at the hands of police, are being used for other, distinctly political, purposes.

It took St. Louis County Prosecuting Attorney Bob McCulloch eleven days to convene a grand jury to investigate whether Wilson should be indicted, but three months later, the grand jury has yet to make a decision.

It took Staten Island District Attorney Daniel Donovan more than a month to announce a special grand jury to determine whether charges should be brought against multiple New York police officers for the July 17 killing of Eric Garner. Three months later, the grand jury has yet to make a decision.

There's little doubt that McCulloch and Donovan acted only after street protests made it impossible for them not to. But, why a grand jury? Why not simply file a complaint, charging the police officers with murder and dispense with the unnecessary, protracted grand jury investigations?

The answer to that question lies in the politics surrounding our country's failure to prosecute police and understanding how government benefits from the grand jury system.

Failure to prosecute police deadly force or even track their numbers
Since prosecutors are intrinsically tied to our country's enforcement apparatus, they are inherently less inclined to arrest and prosecute one of their own. Even the data on where, how often, and under what circumstances police use deadly force is not being collected or at least it's not being made available to the public.

There's an argument to be made that governments at all levels -- local, state, and federal -- don't want the public to know how many people they kill and why. Even though the Federal Bureau of Investigation collects vast amounts of information on crime nationwide, it fails, intentionally or otherwise, to compile data on police-related killings. The group Fatal Encounters is trying to change that by creating an impartial, comprehensive and searchable national database of people killed by law enforcement.

In 2011, the CATO Institute compiled over 8,300 reports of police misconduct in the U.S. from April 2009 through December 2010 and found that for 426 law enforcement officers accused of using fatal force, only 28 faced charges and only half of those who were prosecuted ended up being convicted.

Prosecuting police in the U.S. is difficult for any crime, let alone murder, but that should not be an excuse for failing to bring charges against police who use fatal force. Part of the problem is that a prosecutor often has to prove malicious intent in order to get murder charges to stick. And, while such a high bar must be considered, if not challenged, it should not by itself be a barrier to prosecution.

Grand jury versus preliminary hearing
If enough political pressure is brought to bear, or the evidence is so glaring, prosecutors in many states have the choice of either filing a complaint and swiftly charging a police officer with murder or empaneling a grand jury to investigate whether sufficient evidence exists to indict. The decision of which method to use can often be a political calculation for prosecutors.

After nearly two weeks of militant protests in downtown Oakland in early 2009, Bay Area Rapid Transit police officer Johannes Mehserle was arrested for the New Year's Eve killing of Oscar Grant. Instead of a long, drawn out grand jury investigation, Alameda County District Attorney Tom Orloff filed a complaint against Mehserle, who was formally charged shortly after his arrest.

With a complaint, the person charged is entitled to a preliminary (pre-trial) hearing before a judge, which is open to the public. The prosecutor can call witnesses and use evidence to show probable cause that a crime was committed and that the defendant committed the crime. Defense attorneys can cross-examine state witnesses and also bring evidence. If probable cause is established, then the defendant proceeds to trial, otherwise the case is dismissed.

By contrast, the grand jury is opaque and operates in secrecy. The public is not entitled to know who is serving on a grand jury, the investigation being conducted, the questions asked, or who is called as a witness, except when leaks, official or otherwise, occur. Leaks, like they've happened repeatedly in St. Louis, should nullify the grand jury. If an investigation of impropriety finds that the prosecutor was negligent or somehow responsible, an independent prosecutor should also be appointed. However, if leaks come from the law enforcement community or favor the interests of the prosecutor, such improprieties are ignored or dismissed as inconsequential to the integrity of the grand jury.

The only parties present during questioning by the grand jury are the prosecutor and typically between 16-23 jurors who are not questioned about their impartiality nor assessed for racial proportionality. There are no defense attorneys allowed in the grand jury room, there is no judge presiding over the proceedings, and jurors don't need a unanimous decision to indict someone. Grand juries can last for months, but they routinely indict those who the prosecutor has accused of a crime (between 1992 and June 1994, the U.S. Attorney's Office in the District of Columbia reported that grand juries issued indictments at a 98 percent success rate for the prosecution).

Grand juries are a tool of the prosecution
When grand juries were first used in the U.S. in the 1600s, they acted as a defense against a powerful and abusive English monarchy, far from the role they play today. After the American revolution, in 1791, the U.S. government adopted the Fifth Amendment to the Bill of Rights, which included a Grand Jury Clause aimed at protecting people "against hasty, malicious and oppressive prosecution," by the government. Acting as another check and balance, grand juries were, and still are, used in some state civil courts to express dissatisfaction with, and seek change to, government policy. Civil grand juries are convened for a variety of issues, including allegations of public sector corruption and sexual abuse by members of the clergy.

Today, criminal grand juries are a powerful tool for prosecutors. Under the guise of an "investigation," grand juries are commonly used to get witnesses to inform on or implicate targeted individuals, as government fishing expeditions, and as a means of disrupting political activity. One of the more egregious rules of the grand jury system is the denial of a witness's Fifth Amendment right to remain silent. Unlike any other area of jurisprudence, the prosecutor can offer grand jury witnesses conditional immunity and force them to testify under threat of being thrown in jail for contempt. If a prosecutor thinks they won't be able to show probable cause in a preliminary hearing, they can easily rely on a grand jury to indict.

Prosecutorial manipulation
So, if grand juries issue indictments in the vast majority of cases, then why was the police officer who shot and killed 22-year old John Crawford in a Beaverton, Ohio Walmart never indicted? Why are people in St. Louis and around the country speculating that the grand jury investigating the murder of Michael Brown will likely fail to indict Ferguson police officer Darren Wilson?

The undeniable connection that exists, in general, between prosecutors and the police is the basis for a complete lack of trust that justice will be served. Indeed, the stark exception to the rule of "routine indictments," whereby the killing of unarmed civilians at the hands of police is carried out with impunity (a serious issue even without considering the percentage of these killings that involve white police shooting young Black men) illustrates how much control the prosecutor has over a grand jury.

A prosecutor has no enforceable requirement to bring all of the evidence, or even the most relevant evidence, before a grand jury, and the public will never know what evidence was considered since the proceedings are shrouded in secrecy. A prosecutor can also pick and choose which witnesses to subpoena, influencing the examination of events and basing the investigation on the account or testimony of select witnesses, all without judicial oversight.

A prosecutor can even manipulate the length of time a grand jury will consider evidence before choosing whether to indict. Although it took nearly two months and several street demonstrations before prosecutors in Ohio convened a grand jury to investigate the death of John Crawford, it took only two days for the jurors to decide not to indict the police officers involved. According to James Hayes, the founding member of the Ohio Student Association, a political calculation was made in expediting the grand jury process because prosecutors "didn't want the public to indict [the police officer] before the grand jury had an opportunity to make their decision."

By contrast, the grand juries investigating the police killings of Michael Brown and Eric Garner have taken months to reach a decision. Arguably, prosecutors also used political calculations in choosing to extend these investigations. In September, St. Louis County Prosecuting Attorney Bob McCulloch extended the grand jury for the first time in his career, beyond the normal four-month term to January 7.

Although McCulloch says that the grand jury could makes its decision any day now, some speculate that he has drawn out the process in order to diminish the protests and mitigate any potential uprising in the event the grand jury fails to indict officer Wilson. If so, this has been a miscalculation on McCulloch's part, as the protests have been persistent and increasingly militant in their pursuit of justice. Among protesters' demands, in addition to the indictment of officer Wilson, is the appointment of a special prosecutor, which has been summarily dismissed by Missouri Governor Jay Nixon.

Social cost of grand juries and failures of "justice"
If one has no sense of how prosecutors can, and do, manipulate grand juries, it might appear that the system is fair, impartial, and based on decisions "of the people." However, for those with little expectation that grand juries can help bring justice in police killings, the protracted process currently playing out in St. Louis is beyond frustrating.

It was bad enough that police left Michael Brown lying in the street for more than four hours in what people have compared to a modern day lynching. But for Brown's family and those concerned about the epidemic of police violence in this country, grand jury delays and leaks of information predominantly aimed at discrediting Brown have left bitterness and resignation. For many, the idea that we're living in a colorblind, post-racial society is not only delusional, but also a very long way off.

Black youth in Ferguson and beyond are standing up to this injustice and refusing to accept the status quo. Not only have protests been ongoing, they have been widespread and unavoidable. Over the past three months, protestors have shut down freeways, Walmarts, Quick Trips, and various intersections throughout St. Louis, as well as disrupted political fundraisers, the opera, and sporting events to name just a few ways that Black youth have forced us to have difficult conversations about race and police accountability. Plans are currently underway for mass demonstrations in the event the grand jury fails to indict Wilson.

But, regardless of the grand jury's decision, its institutional shortcomings have been laid bare, and a nascent Black youth-led movement that refuses to wait for a politically-influenced indictment has a unique ability to establish a new brand of justice not just in Ferguson, but across the country.