Many people may have hoped this would be one of those rare exceptions, but to anybody paying attention, the Ferguson grand jury's decision to give Officer Darren Wilson a pass on the shooting of Michael Brown was a foregone conclusion.
The road to the inevitable was unusual, however. Grand juries aren't there to decide guilt. They're only there to determine whether probable cause exists to hand down an indictment. This happens thousands of times a year all over the country, and it's a true rarity when indictments are not handed down.
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.
It's not a true comparison only in this respect: the above numbers are federal and this was handled by a state grand jury. But the numbers won't vary by much. Grand juries hear evidence provided by a prosecutor seeking an indictment. It is not an adversarial system.
And the system works -- if the system's designed to obtain indictments. That's what grand juries do best. As we covered here earlier this year
, a grand jury in North Carolina showed the system is capable of racking up indictments at breakneck speed
During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.
That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.
That didn't happen here. The grand jury considered this case over a period of nearly three months. Hundred of pages of evidence and nearly 70 hours of testimony
were considered. But the length of the process wasn't the only oddity. There was also the behavior of prosecutor Robert McCullough. Paul Cassell -- who's been acting as law enforcement's Stewart Baker at the Volokh Conspiracy -- maintains that everything about the Ferguson shooting grand jury was normal as normal could be
, give or take a few months of deliberation. Defense attorney Jeff Gamso points out the flaws in Cassell's assertions
Now, of course, we know that the grand jury did what we knew it would do. No, they said, we're not going to indict Wilson. And Cassell is back to assure us that they did their job properly and that there's absolutely nothing out of the ordinary that went on. Specifically, he says this:
"A day before the grand jury’s decision was announced, Michael Brown’s family attorney raised the objection that the grand jury process was unfair because it was deviation from the normal process. 'When you think about it, if this prosecutor is saying we’re just going to be fair, we’re not going to recommend any charges, that’s different from anything he’s done in his past 28 years with grand juries,' attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation — leaving the issue up to the grand jurors. But it is hard to understand how this had any ultimate bearing on the outcome. Of course, if McCulloch’s recommendation was against filing charges, then he would never have gone to the grand jury in a normal case. And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point."
Cassell makes the following points.
1. Benjamin Crump says that the prosecutor's behavior in this case was unusual because he didn't recommend any charges.
2. That's not true.
3. The only thing unusual is that the prosecutor didn't recommend any charges.
A prosecutor not recommending any particular charge is an oddity. Not only that, but McCulloch advised the grand jury that any doubt it held meant it must find in favor of Officer Wilson. That's something prosecutors seeking indictments never
do. Prosecutors prosecute. Indictments are why they exist. Without these, they can't move forward on capital crimes. And yet, McCulloch apparently felt the non-adversarial setting wasn't predisposed enough in Wilson's favor. In this setting, McCulloch acted more as Wilson's defense attorney than the jurisdiction's prosecutor.
Indictments are easy. Probable cause is all the grand jury needs to move forward with an indictment. That's an extremely low bar. That's a cop telling you a dog said
he can search your car (or your anal cavity
) without a warrant
-- and that a judge will back up his facially ridiculous assertion. Probable cause in the context of a grand jury is a hurdle that is generally cleared with little to no thought. (See also: the two statistics quoted in previous paragraphs.)
But the system still worked. It worked exactly as it has for years and years. For civilians, the odds are terrible. 11 cases out of 162,000 ended up with no indictment. For police officers, the numbers are the complete opposite
A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment.
So, when the grand jury failed to return an indictment, the system still worked. The outcome was never seriously in doubt. When it's civilians, grand juries can "indict a ham sandwich." When it's law enforcement officers, it's this
Remember, grand juries used to be indict a ham sandwich. Now they can’t indict white bread.
The Ferguson grand jury played its part in the process. It examined evidence presented by a prosecutor who wasn't interested in pursuing an indictment against
Officer Wilson and did what grand juries do when faced with the possibility of indicting cops: it declined to do so. Average Americans can expect returned indictments at fast-food drive-in speeds. Police officers will get weeks of deliberation followed by a non-indictment. The system works as it always has
Had the prosecution desired an indictment against Ferguson Police Officer Darren Wilson, the presentment would have taken an hour, maybe two, and there would have been a true bill by close of business the next day, well before Michael Brown had been laid to rest. The grand jury isn’t the venue to present “all the evidence.” That’s what trials are for. The grand jury serves a very limited function, to determine whether sufficient evidence exists so that there is probable cause to proceed to trial.
In Ferguson, the grand jury served a very different purpose. It was the mechanism by which the guardians of the status quo protect the American dream of an orderly society, where the appearance of challenge is preserved so that lazy and ignorant Americans can sleep well at night, secure in the belief that their officials and institutions are doing the job of protecting their comfort against the unsavory and the malcontents.
The end result is no surprise. There are factors that contribute to this, not the least of which being that police officers perform a job that sometimes requires the use of deadly force. Because of this, more leeway is given to police officers facing criminal charges. That prosecutors play for the same "team" as cops weighs into this non-indictment as well.
But everyone knew it would end up this way, even as they hoped it wouldn't. The extended deliberations were basically a show trial meant to show a watching nation how serious officials were working to have justice served -- without all the unpleasant, uncontrollable uncertainties an actual trial tends to bring with it. This is how the system works. Even if the decision gone the other way, the end result would likely be no different. Officer Wilson would be armed with a defense lawyer and still facing prosecutors lacking the desire to prosecute.
No one gained any ground as a result of this. We're still right where we were. And it can't be fixed by destroying Officer Wilson or turning Michael Brown into a martyr. This sort of thing happens far too often to be repaired by simplistic measures. The system is imbalanced and cannot be righted by tipping the scale in the opposite direction and hoping it all averages out. There's a greater cry for accountability that's now being belatedly answered as law enforcement agencies are making more of an effort to work with community leaders and equip officers with recording devices. Unfortunately, most of this is driven by reactions to massive amounts of police misconduct rather than by proactive efforts. But, beyond all of that, the justice system's extreme deference to law enforcement continues to trip up installed corrective measures by allowing it to set the tone and the rules of engagement.