After Bizarre Lack of Indictment Ferguson Prosecutor Gives Bizarre Press Conference

Many in the legal profession will say that a prosecutor dead set on an indictment could get a ham sandwich indicted.  Whether the prosecution will prevail at trial is another matter, but getting an indictment is rarely an issue.  Indeed, one Huffington Post article notes that U.S. Attorneys prosecuted 162,000 cases in 2012 and only 11 times did they fail to secure indictments.  Against this background, St. Louis County Prosecuting Attorney Robert McCulloch lashed out at the media, blaming the internet and "the 24-hour news cycle" for the unrest in Ferguson, Missouri.  The situation is at best bizarre.  Here are highlights from an article that looks at how rare it is for a grand jury not to indict:

A St. Louis County grand jury on Monday decided not to indict Ferguson, Missouri, police Officer Darren Wilson in the August killing of teenager Michael Brown. The decision wasn’t a surprise — leaks from the grand jury had led most observers to conclude an indictment was unlikely — but it was unusual. Grand juries nearly always decide to indict.

Or at least, they nearly always do so in cases that don’t involve police officers.

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.

Wilson’s case was heard in state court, not federal, so the numbers aren’t directly comparable. Unlike in federal court, most states, including Missouri, allow prosecutors to bring charges via a preliminary hearing in front of a judge instead of through a grand jury indictment. That means many routine cases never go before a grand jury. Still, legal experts agree that, at any level, it is extremely rare for prosecutors to fail to win an indictment.

“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.”

Cases involving police shootings, however, appear to be an exception.

There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. 

The second is prosecutorial bias: Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.

The third possible explanation is more benign. Ordinarily, prosecutors only bring a case if they think they can get an indictment. But in high-profile cases such as police shootings, they may feel public pressure to bring charges even if they think they have a weak case.

I cannot help but feel that explanations 1 and 2 came to play in this case.  The reality is that an indictment followed by a trial in open court may not have secured the result that many residents of Ferguson wanted, but it would have been out in the open and less subject to criticism and claims of bias for evidence and testimony given behind closed doors.