I struggle to understand the refusal of a Missouri Grand Jury to indict the officer involved the death of Michael Brown and a New York Grand Jury to indict the officer involved in the Eric Garner for any crime. What you read in this diary won't be anything you haven't read before. It contains no original research or keen insight; it's just my attempt to absorb some of the data out there. The first place I started was Nate Silver's FiveThirtyEight site.
In Ben Casselman's 538 post, titled It's Incredibly Rare for a Grand Jury to do What Ferguson's Just Did, he quotes former New York state Chief Judge Sol Wachtler for the proposition that a prosecutor could persuade a grand jury to “indict a ham sandwich.” He points out that according to the Bureau of Justice Statistics, out of 162,000 federal cases that U.S. attorneys prosecuted in 2010, the most recent year for which they have data. Grand juries declined to return an indictment only 11 times. Am I wrong or does this mean the grand jury system (at least at the federal level) is at best a symbolic gesture and utter waste of time?
I realize this data is only compiled at the federal level. But nothing I have read in my effort to understand what happened in Ferguson and New York leads me to believe the state level does not suffer from the same problem. And this is that when a prosecutor wants and indictment, he gets an indictment. When he doesn't want an indictment, he doesn't get an indictment. In other words, a prosecutor can use a grand jury as political cover when he wants to keep his fingerprints off a politically unpopular decision.
I pause here to point out that David French of the National Review Online has challenged these numbers in his article, Don’t Let FiveThirtyEight’s Misleading Statistics Fan Ferguson Outrage. Mr. French points out that not every criminal case is sent to a grand jury and that weak cases where probable cause is in doubt will be dropped without sending them to a grand jury. He also contends that "in publicly controversial cases, such as police shootings, where the prosecutor doesn’t want to be seen as the sole decider of the case ... prosecutors will often send a case to the grand jury, but not as an advocate for the indictment but rather as a conduit for all known evidence in the case...."
Regardless of who is right on the data, my point is that the grand jury system needs to be revised if it is only serving as a glorified rubber stamp for prosecutors when they want an indictment and political cover when they prefer to punt a case without taking responsibility for the decision. I also mentioned above that I haven't read anything to lead me to believe the state grand jury system collectively is any different than the current federal grand jury system. E.g., the Houston Chronicle's report that in 2013, Houston Police Department officers involved in shootings have been cleared every single time they've gone to a grand jury since 2004 -- at least 288 consecutive times as set out in Michael Barajas's post, Reminder: Houston Grand Juries (Almost) Never Indict Cops for Shooting Civilians. This is likewise true in Dallas according to the 538 piece, which states that Dallas grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment.
Radley Balko in the Washington Post makes this point in his article, Houston grand juries: too white, too law-and-order, and too cozy with cops:
The grand jury is in some ways a relic from a different time, when we didn’t have full-time prosecutors, and charges and allegations were brought by private citizens. Today, a grand jury, made up of a panel of private citizens, is supposed to stand as a check on overzealous police and prosecutors. In truth, grand juries are notorious for their willingness to do whatever prosecutors ask of them.
So the upshot of my readings is that I see no reason why the grand jury system shouldn't be thrown out or heavily reformed for routine criminal cases. Let prosecutors make their own determinations and then let a judge hold a "probably cause hearing" (whatever the appropriate language might be). I don't know enough to state whether the grand jury system serves a purpose in different circumstances.
Now, one small sub-point. In the Garner death, we had videotape and I've read some questioning of whether body-cameras are worth it given that video didn't ensure an indictment in that situation. But I put the failure to indict firmly at the feet of a broken grand jury system. Video may not guarantee a conviction in all cases of police brutality, but it's absence almost assuredly means no indictment or charges will be filed. For example, The Horror Every Day: Police Brutality In Houston Goes Unpunished in which we learn that out of 706 police abuse complaints the past six years, only 15 were sustained and out of those fifteen, 10 or 11 of them were supported by videotape evidence.
So for me, body cameras yes, grand juries, not so much.