Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” Raw data, as well as the experiences of those regularly involved with the criminal justice system can attest to this. 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.
“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” adds 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 would appear, at least from media accounts, that grand juries frequently decline to indict law-enforcement officials.
Especially given a certain amount of mistrust many have toward law enforcement, why would that be?
One place to look is the source of the information a grand jury is given.
The source of information presented to the grand jury is from the same agency which deals with police officers professionally every single day of the year. Every year. It is a symbiotic relationship also. It is supposed to be, at least.
It is the office of the prosecutor.
The ally in investigations through trials of the prosecutor is the police officer. Any defense attorney can tell you how cozy the prosecutor and the police officer seem to be. Each seems to be watching the other’s back.
As a former prosecutor, I can tell you that it seldom seems as if the two entities are not on the same side.
And, again, the entity controlling the grand jury presentment is that same prosecutor’s office. The investigators gathering the evidence for the presentment?
The witnesses used to present the evidence?
Sometimes, however, as was the case in the Ferguson matter, citizens are brought in before the grand jury to testify.
Whoever the witnesses turn out to be, though, it is the prosecutor who presents the evidence and becomes the grand jurors’ legal advisor.
Attorney Sam’s Take On Corruption And Conspiracies In The Grand Jury
To say that racism no longer exists in this country on any level would be to mistake fantasy for reality. On the other hand, we seem to have made great improvements in most of our reactions to race as well as other differences between us.
Both truths co-exist and neither makes the other disappear.
A natural question which comes from the decision of the Ferguson grand jury is the question of control. Who controlled the grand jurors. Who is actually responsible for the decision they made?
As discussed yesterday, prosecutors control what evidence a grand jury sees and hears. However, the prosecutor does not control the grand jurors’ minds. Nor does the prosecutor make the final decision for them. The fact that a prosecutor may give one-directional information to them or exude vibe of his or her own does not take away from the fact that it is the grand jurors who make the decision.
“But, Sam, isn’t there any way to know what the prosecutor tells them?”
Sure. The presentation is taken down word for word and ends up in a transcript. In fact, much of the transcriptions of the presentation in this case have been released by the prosecutor for this very reason.
“Couldn’t the transcript be falsified or things left out ? Couldn’t the prosecutors tell the grand jurors in between witnesses what to do?”
It is possible. Just like it is possible that the prosecutor could have brandished an Uzi, pointed it at the jurors and told them to vote a certain way or they would die between the witnesses.
Physically possible? Yes. Realistic? No.
“How do you know? Were you there?”
No. But I have dealt with cases like this on both sides. I have made many grand jury presentments. I have represented witnesses in grand jury presentments. I have not only never witnessed such intentional behavior, I have never even heard of it being done. The fact is that anyone trying something like that would be not only putting their career on the line, but also, most likely, their freedom.
Further, can you imagine the conspiracy necessary involving all sorts of people within and without of the system for such things to be possible? Especially in such a high profile case?
It is also worth noting that things would have been much easier for the state if Officer Wilson had been indicted. No protests. No suspicion. No allegations of racism.
“Speaking of racism, you referred yesterday to the claims that the No True Bill (vote for no indictment) is not a message that the grand jury and/or law enforcement feel that the life of a black man is not worth prosecuting about. Yet, you do seem to indicate that racism is involved.”
I think so, yes.
“Can you explain that?”
Sure I can.
In my next blog.
For the original stories upon which this blog is based, please go to
http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren-wilson/ , http://www.npr.org/blogs/thetwo-way/2014/11/25/366507379/ferguson-docs-how-the-grand-jury-reached-a-decision and http://www.cnn.com/2014/11/10/us/ferguson-michael-brown-shooting/