I’m not a lawyer. I’m going to go out on a limb and guess that the majority of the Metropolitan’s readers are also not lawyers. And while there are a few exceptions, I know most of my Facebook followers aren’t lawyers.
And yet, there are many people who seem to be so sure of their understanding about how a grand jury works, that they’re willing to take any decision made at face value — as proof of innocence or guilt.
That’s not actually how a grand jury works. In a grand jury hearing, the prosecution (usually only the prosecution) presents evidence in a relaxed setting to the grand jury, who decide whether to issue an indictment — whether there is enough evidence to charge someone with a crime. Since, traditionally, the defense doesn’t get a say, it’s pretty easy to get a grand jury to indict someone in most cases.
In fact, it’s so easy in most cases that a former New York state chief judge, Sol Wachtler, famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.”
On a federal level (different than the state level, like in Ferguson, Missouri, where most cases are brought before judges for an indictment rather then grand juries), in 2010 (the last year for which we have statistics), grand juries returned just 11 out of 162,000 violent crime cases without an indictment, according to the FBI’s Bureau of Justice Statistics.
There is one exception, and we saw it frequently in 2014: when a police officer is charged with a crime, a grand jury only rarely returns an indictment.
We saw this in action when a grand jury failed to indict Ferguson police officer Darren Wilson for the killing of unarmed black teenager Michael Brown, even on a charge of involuntary manslaughter. We saw it in New York, when a grand jury failed to indict NYPD officer Daniel Pantaleo in the choking death of unarmed Eric Garner (an indictment was, however, handed out for the man who videotaped Garner’s death, with about as much difficulty as it would take to indict a ham sandwich).
According to research by Philip Stinson , an assistant professor of criminal justice at Bowling Green State University, Ohio, only 41 officers in the United States were charged with murder or manslaughter between 2005 and 2011. Total numbers of officer-related shootings are unclear, as the FBI’s report of 2,718 “justified homicides” by officers over the same period is considered a low estimate, as police organizations aren’t required to submit their records to this report.
So why the discrepancy? If it’s so easy to indict for violent crime, why are so few officers indicted?
There’s a few theories. The first is that we’ve trained the public to trust police officers. That trust can be necessary for those officers to do their jobs, but it may be given too blindly: as the military intelligence community put it when I was in the Air Force, “trust, but verify.”
Since, in officer-involved shootings, the events are often the word of a police officer carrying a public trust versus a victim, who are often busy being dead and unable to defend themselves, grand juries may not give as much credence to evidence against police officers than they do to ordinary citizens.
Another possibility is that prosecutors, on whom much of the burden of securing an indictment in a grand jury falls, are naturally reluctant to push for the prosecution of the officers they have to work with, every day, to enforce the law. This isn’t necessarily something that happens consciously, but prosecutorial bias could easily be a factor, especially if combined with juror bias.
Finally, a misunderstanding in the general public of the lower standards of evidence needed to secure indictment, rather than the “beyond reasonable doubt” required for a conviction, could result in confusion on a jury — and certainly does in the court of public opinion.
Is there a way to fix this? Possibly, require a special prosecutor for all grand jury investigations or indictment hearings involving a police officer, to relieve prosecutors of the inherent conflict of interest in attempting to indict their co-workers. Another would be to do away with grand juries altogether, as a majority of the world has done, and bring charges against officers to a full trial, where guilt or innocence can be determined “beyond a reasonable doubt.”
Until we fix the problems with indictment in this country, justice won’t be done. Innocence, or guilt, is not determined in a grand jury.