MENU

Reason.com

Free Minds & Free Markets

Grand Juries Almost Never Fail to Indict, But They Did in Ferguson

The St. Louis County grand jury who came out with a "No True Bill" on all five potential indictments against Ferguson PD Officer Darren Wilson did an incredibly rare thing. How rare? FiveThirtyEight reports:

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.

I'll do the math for you: that's 0.0000679 0.0067901 percent of the time. Yes, these numbers are federal and not state cases, so they exclude the jurisdiction of St. Louis County Prosecutor Bob McCulloch. But also note, viaRobert McCulloghC-SPANFiveThirtyEight:

“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.

McCulloch's bizarre, rambling, at times overtly hostile press conference announcing that there would be no indictment of Officer Wilson in the shooting death of unarmed teenager Michael Brown gave some the impression that he was not an objective party in this investigation. McCulloch's ties to law enforcement could hardly be more intimate. As reported by CBS News:

The Missouri prosecutor overseeing an investigation into the fatal shooting of 18-year-old Michael Brown has deep family roots among police: his father, mother, brother, uncle and cousin all worked for St. Louis' police department, and his father was killed while responding to a call involving a black suspect.

Grand juries rarely indict law enforcement officials. It's hard to imagine they'd ever indict one if the prosecutor's allegiances are as evident as McCulloch's appear to be.

(Hat tip: Andrew Fishman.)

Photo Credit: C-Span

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • The_Millenial||

    Well, we'll have an opportunity to evaluate the evidence ourselves and see if McCulloch erred and/or was biased.

  • wef||

    I would bet a little that the grand jury decision was correct. In other circumstances, a prosecutor might not have even taken the case to the jury. More two-bit commentary: McCulloch was probably buck-passing and delaying by going after an unlikely indictment. Although it's a secondary irritant, his narcissism and supercilious tendentiousness was either an oblivious regression to immaturity or purposefully provocative.

  • F. Stupidity, Jr.||

    That it rarely happens doesn't mean that it never happens. It's just a coincidence that this happened in connection with a very high-profile case.

  • north of y'all||

    It is also a coincidence that the ever-so-rare no bill happens when an LEO is the defendant.

    Not saying this grand jury got it wrong; I think they probably got it right from what I know of the case. However, it would be nice if it wasn't just the nobility who gets the benefit of the doubt from the DA and grand jurors. I mean, fuck, how many innocent people get indicted with bullshit cases every fucking day in this country?

    I recently sat on a GJ (first time) here where I live and it was amazing to me how flimsy the shit the prosecutor brought in to us: no evidence, heresy, 3 cop witnesses and nothing else, etc. Do you think this slowed the jurors down at all? Actually, in one case it was so bad and the DA clearly over-charged the indictment and I just could not let it go. We ended with only 2/4 charges getting true billed. That prosecutor was/is so fucking pissed...he gave me a lecture at the end of our service.

  • sasob||

    There are no innocent people among the peasants.

  • VG Zaytsev||

    it was amazing to me how flimsy the shit the prosecutor brought in to us: no evidence, heresy...

    Global warming deniers?

  • ||

    . . . heresy . . .

    "There is no such thing as a plea of innocence in my court. A plea of innocence is guilty of wasting my time. Guilty."

  • Scruffy Nerfherder||

    he gave me a lecture at the end of our service

    Yes, they really don't like it when they are reminded that they are not rulers. Judges are cut from the same cloth.

  • VerizonCustomerSupport||

    Shouldn't that be 0.00679 percent? I learned my lesson the hard way.

  • Copernicus||

    To be fair, author Anthony likely spent more time in the Humanities building than the Math/Science end of the campus.

    Still, it is a bit of a Jonez when he prefaces his stat with "I'll do the math for you:"

  • some guy||

    He didn't say he would do it right...

    Never trust someone else's math... Especially at a restaurant.

  • Copernicus||

    You think misquoting Socrates is going to impress us?

    What he actually said was: the unexamined bill is not worth paying.

  • Warren's Strapon||

    "Like you've ever read Socrates." -- Thomas Jefferson

  • Real American||

    of course, they don't indict in cases that aren't brought to them because prosecutors look at the evidence and come to the conclusion that no crime had been committed. Prosecutors do that all the time and then don't seek an indictment. That didn't happen in this case because the prosecutor sought an indictment for political reasons, not factual or legal ones. Grand juries can tell the difference.

  • Acosmist||

    Good damn point.

  • PapayaSF||

    ^This. This article makes the assumption that McCullough was biased in favor of Wilson, but McCullough is not just a Democrat, but was an attack dog Democrat for Obama in 2008, when he threatened to target anyone who "lied" about Obama. I think his rambling and frustration come from the fact that he doesn't have the evidence to prosecute, so he's failing to support the Obama/Democratic Party (and Reason magazine) "police brutality" line on this.

    It's a huge leap to look at this "rare failure" to prosecute and conclude the prosecutor didn't want it to happen. It was a political stunt, and those often fail.

  • JHernan||

    Egg freakin' zactly

  • brnInAbuDhabi||

    I served on a grand jury in North Carolina for a year and in that time we failed to indict three times out of a several hundred cases.

  • ||

    How many of those 11 featured law enforcement as the subject?

  • north of y'all||

    I was wondering the same thing? If we take out the LEO's and other politically connected defendants, does 11 become zero?

  • soflarider||

    How may of those 162,000 cases were put before the grand jury despite having evidence showing an indictment wasn't warranted?

  • MarkinLA||

    Yes something so very important but widely overlooked. There was no evidence for an indictment. I bet the DA realized that and punted to the GJ so that he couldn't be accused of white-washing it.

    However as a Democrat he should have know he'd be a racist tool of the establishment no matter what he did if there was no indictment.

  • FUQ||

    This still doesn't change the fact that with all the reported "facts" the chances of ever convicting Wilson of anything was extremely remote. This should have been No Billed. All the effort and time spent by Reason could have been more effectively spent on a number of other cases that support the police brutality meme.

  • north of y'all||

    Oh shut up with that tired crap. It is fucking news and people are fired up and paying attention. Reason's coverage is obligatory.

  • FUQ||

    So agree with what you think is important or shut up? I never said they shouldn't cover it but they sure picked a horrible case to waste all this ink on.

  • north of y'all||

    Okay, "shut up" was a bit much. Apologies, I think it was about the 40th iteration of that argument I've read in the last hour and I just started typing and...and...oh God! I am sooo sorry!

    Anyway, this case is getting play and ink at levels seldom seen. I, for one, am happy that Reason is all the way in on this one.

  • FUQ||

    I just hate seeing all this ink wasted on a such a loser of a case. I think the response by the police to the protestors is more damning than what Wilson did.

  • north of y'all||

    I couldn't agree more with your last sentence. That is the real story in this case. The shit those asshats pulled in those first few days/weeks of protest was something I used to think would never happen in this country.

    Remember, the people of Ferguson are not responding to Wilson or Brown. Rather, they are in the streets protesting the way their community has been policed for the last several decades.

  • Irish||

    Remember, the people of Ferguson are not responding to Wilson or Brown. Rather, they are in the streets protesting the way their community has been policed for the last several decades.

    They're not 'protesting' they're burning down businesses and hurting people.

    I have no sympathy for these idiots.

  • Warren's Strapon||

    They're not 'protesting' they're burning down businesses and hurting people.

    And in the long run, or at least medium run, they're hurting themselves. Would you open up a grocery store in Ferguson any time soon?

  • Invisible Finger||

    They're not 'protesting' they're burning down businesses and hurting people.

    A few people are looting and burning, the state henchmen use it as an excuse to harm anyone they feel like because investigation is hard, they're loaded with adrenalin, and they have numbers to meet. No different than the US droning results.

  • MarkinLA||

    Actually, for people who are just starting to wake up about all the whining by "people of color" this is a wonderful case in that it exposes the irrationality of the left and the anti-racists.

  • SIV||

    'tards all around...

  • sasob||

    McCulloch's bizarre, rambling, at times overtly hostile press conference announcing that there would be no indictment of Officer Wilson in the shooting death of unarmed teenager Michael Brown gave some the impression that he was not an objective party in this investigation. McCulloch's ties to law enforcement could hardly be more intimate.

    Objective? Lol, why would anyone expect that? Next you'll want unbiased. When it gets to nut cuttin' time the Man is always going to come down on the side of the Man. That's just the way it is.

  • FUQ||

    It's surprising that anyone would think that a prosecutor would be unbiased when it concerns police. A prosecutor who went after the local LEO's would soon find themselves unable to make cases. I don't think cases like this or any case involving police misconduct should be handled by the local prosecutor. There should be an independent process that doesn't involve the locals at all.

  • Cyto||

    I would not have characterized the press conference as bizarre, rambling or overtly hostile.

    The guy went in to great detail about the process that was used - specifically about just how they intentionally shared every bit of evidence they had with the grand jury. This was necessary to counter accusations of a whitewash. He also took pains to indicate that Federal resources were used to gather evidence, and that all of the locally collected evidence was shared with the feds.

    After the no-bill punchline he gave us our first glimpse of the outline of the events that would lead them to decline to indict. All of this followed by a complete data-dump of all of the evidence used in the case (minus some unspecified evidence). Then he answered questions. A fairly large number of questions, many of which were from seemingly unsympathetic and partisan reporters. Many of their questions were in direct contradiction of information he had given them only moments before. Yet he handled them all - and not really in a politician way, but in a matter-of-fact here's the best answer I have sort of way.

    The only part I would call "rambling" was the bit where he tried to cheer on the protesters. But that was hardly part of the substance of the event.

  • soflarider||

    Agree 100%.

  • EasyEight||

    Does Nick no longer serve as an active editor? I feel I'm increasingly reading the HuffPo, not Reason.

  • Cyto||

    I would not have characterized the press conference as bizarre, rambling or overtly hostile.

    The guy went in to great detail about the process that was used - specifically about just how they intentionally shared every bit of evidence they had with the grand jury. This was necessary to counter accusations of a whitewash. He also took pains to indicate that Federal resources were used to gather evidence, and that all of the locally collected evidence was shared with the feds.

    After the no-bill punchline he gave us our first glimpse of the outline of the events that would lead them to decline to indict. All of this followed by a complete data-dump of all of the evidence used in the case (minus some unspecified evidence). Then he answered questions. A fairly large number of questions, many of which were from seemingly unsympathetic and partisan reporters. Many of their questions were in direct contradiction of information he had given them only moments before. Yet he handled them all - and not really in a politician way, but in a matter-of-fact here's the best answer I have sort of way.

    The only part I would call "rambling" was the bit where he tried to cheer on the protesters. But that was hardly part of the substance of the event.

  • Cyto||

    The notion that they always get indictments from grand juries so they must have tanked this one is also debatable. I would think they wouldn't bring anything before the grand jury unless they were pretty sure they had a good case. It is this phenomenon that explains the high charging rate for grand juries. Pretty much every case they see is going to be above the "probable cause" threshold.

    In this case the merits of the case were irrelevant to the decision to seek an indictment with the grand jury. They had to go the grand jury route as soon as they realized that they didn't have a case. No way in the world Mr. Elected Public Official is going to decline to prosecute this one on his own nickel. If it was getting dropped, it was getting dropped by an anonymous jury. And no way is a prosecutor going to charge a cop with murder unless he has an iron-clad case. And then he still would need an iron will to risk his career on such a prosecution.

  • Stickler Meeseeks||

    Agreed. And to put this another way, while the prosecutor could get a jury to indict a ham sandwich, there was no ham sandwich here.

  • MarkinLA||

    One thing about this "could indict a ham sandwich" garbage is that these people are crying that "exculpatory" evidence was presented. Exculpatory based on what definition? In an officer involved shooting it isn't just that a guy was shot. Because of the allowances given to cops, the events surrounding the shooting are critically important and relevant. How does one ignore them simply because they support the cop?

  • Cyto||

    Another head-shaker from the media: Anderson Cooper was disturbed by the prosecutor's call for us to learn to "avoid these situations entirely in the future".

    They really were reaching for something to get upset about.

  • Ken Shultz||

    From the prosecutors' own statement, it sounded like they were almost acting as the defense for Darren Wilson, which seems unusual to me. How often do prosecutors go before a grand jury and argue against an indictment?

    Under the same circumstances and not being a cop, I doubt the prosecutor would present the case to the jury like that for me.

    He repeatedly shot an unarmed man. Thousands of people are indicted every day for so much less. I'm not saying he was guilty. But not enough evidence to have a trial--really?

  • Invisible Finger||

    How often do prosecutors go before a grand jury and argue against an indictment?

    I heard the same thing during the Zimmerman incident. Eventually the prosecutor just said "fuck it, the public wants an indictment and the hassle of NOT indicting is worse than the hassle of arguing a flimsy case in a trial.

  • MarkinLA||

    And there are plenty of cases of justifiable homicide that never get past the DA that you never hear about. This would have been one of them if Brown was white.

  • Marktaylor||

    So this week is the new thing to be pissed about. He isn't guilty but we should waste time and money putting on a dog and pony show?

  • Jayfl||

    I think, in this case, the only reason it was brought to the Grand Jury only because of the volatility of the case and the outside agitators. If he had said there was no evidence to go to a Grand Jury outright, the people who make money on the plight of others would have had more ammunition to blow things up. There is very little "reason" in this article. More like a biased media attempt for greater ratings.

  • Helices||

    Actually, doing non-common core math, that percentage is 2 orders of magnitude larger: 0.0068% - but, who's concerned with accuracy when the number is that small? ;-)

  • brokencycle||

    You're using data about US attorneys for federal cases, not state and local cases. As many readers of Reason know, the federal government is far more successful in prosecuting cases than states, in part because the rules of evidence are generally more favorable to the People in federal cases.

  • TheWildWebster||

    I thought this was 'reason.com' - correlation does not imply causation. I see no citations of 'false' or invalid indictments, just two statistics and the implication that they somehow equate to wrong doing. Is it possible that cases that are brought before the grand jury are of a nature that they are already more prone to deserve an indictment? And an indictment is not a verdict. It is merely a charge. Yet I see nothing relating to outcomes of indictments either. What is this article trying to say? From where I stand, it is saying nothing but trying to imply something heinous. This is not 'reason' by any definition I know it.

  • LawRenegade||

    And I suppose the author has evidence of bias in the process? If he does, he certainly fails to present any of it in his so called article. If I wanted to thoughtless, unsubstantiated rubbish like this, I would read the National Enquirer or the like. Perhaps no indictment was returned because there was simply not enough evidence? More likely, perhaps it only got as far as a grand jury because the media and race baiting politicians made an issue out of something where there was none. When some of the autopsy evidence was made public, it was completely at odds with early eye-witness and media accounts of what transpired. A little objectivity in lieu of inflammatory, uncorroborated media reports might do us some good.

  • Tatyanahamm||

    Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do...... ✹✹✹✹✹✹ www.jobsfish.com

  • AD-RtR/OS!||

    Gee, do you think it could have something to do with the actual evidence?

  • JHernan||

    Why worry about that when you can spew non sequitur statistics?

  • AD-RtR/OS!||

    We hear a lot of demands for mandatory body-cams for the Police - the Brown Family atty seems to want to lead this crusade.
    What we don't hear is that the record sort of indicates that these cams have a tendency to support the police narrative, and put the lie to the over-the-top accounts of police brutality and/or over-reaction.
    If the evidence presented to the GJ is an accurate representation of the course of events, a body cam would not have changed that; and it would have forced the family to recognize that "Big Mike" was a bully and a thug, who died due to the bad decisions he made that day - and it would open his accomplice to Felony Murder charges for the aftermath of the strong-arm robbery (I wonder what charges he may actually be facing for the day's events?).

  • larryseltzer||

    The Missouri numbers may be similar, but using the numbers for Federal grand juries in this context is potentially misleading.

  • jdgalt||

    Reason, use your reason, and look at the evidence before rushing to judgment.

    Granted, there is lots of misuse of force by police, and it's imperative the police be made personally answerable when it happens.

    This was simply not one of those cases. Brown committed a robbery, then charged an officer in the middle of the street. He needed to die.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online