Ferguson Grand Jury

By declining to indict the police officer, Darren Wilson, for the shooting death of Michael Brown, the grand jury of Ferguson, Missouri, has provoked a great deal of discussion of the grand jury process in the United States. Here is some material, most of it collected by Kim Lane Scheppele1:

  1. The St. Louis grand jury was operating under the standard that it had to determine only that there was “probable cause” that Darren Wilson had committed a crime.  This is a low standard, and a standard used in most grand juries, including federal ones.   This is why a study of federal grand juries found that out of 162,000 federal cases in 2010, Bureau of Justice statistics show that there was a FAILURE to indict in only 11 cases.    In the garden variety criminal case, failure to indict is rare.  
  2. That said, police shootings routinely fail to go to trial. 
    1. Here’s an excerpt from a recent Wall Street Journal report on a Bowling Green study of police shootings:    http://www.wsj.com/articles/police-rarely-criminally-charged-for-on-duty-shootings-1416874955
      New research by a Bowling Green State University criminologist shows that 41 officers in the U.S. were charged with either murder or manslaughter in connection with on-duty shootings over a seven-year period ending in 2011. Over that same period, the Federal Bureau of Investigation reported 2,718 justified homicides by law enforcement, an incomplete count, according to experts.
    2. FiveThirtyEight collected a broader array of statistics on the prosecution of police for use of excessive force:  http://fivethirtyeight.com/datalab/allegations-of-police-misconduct-rarely-result-in-charges/ .   They confirm that police being tried for shooting a suspect in the line of duty is a rare occurrence.
  3. The Ferguson grand jury was given NO charges by the prosecutor; instead, they were expected to come up with the charges that they thought fit the crime, if there was a crime.
  4. How was the jury to know whether Darren Wilson had committed a crime?   If he had been a civilian, criminal charges would have been obvious.   But police are allowed to use force in ways that civilians aren’t.   To explain this to the jury, the Ferguson assistant prosecutor gave to the jury a copy of the law regulating the use of deadly force in Missouri, which is as follows:

    §  A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only …. when he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony; or is attempting to escape by use of a deadly weapon; or may otherwise endanger life or inflict serious physical injury unless arrested without delay.

  5. The problem with the Missouri law, however, is that it is flatly inconsistent with Tennesee v. Garner,  471 U.S. 1 (1985) which held that:

    §  This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. . . .(3)

  6. The Missouri law permits officers to shoot to kill in cases where the suspect is merely attempting to escape, something that Garner finds unconstitutional.   If the Ferguson grand jury believed that Wilson would have been justified in shooting to kill Michael Brown merely if he were escaping arrest, then they would not have had to reach agreement on whether Brown either had a weapon or was likely to seriously harm others.
  7. The first journalist to pick up this problem with Lawrence O’Donnell of MSNBC, himself a former prosecutor:  http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666 .   As O’Donnell explains with quotations from the transcript, the grand jury was given a copy of the law at the start of their consideration of the Wilson case, then told at the end that a Supreme Court decision had “created problems” with that law.  Then, the grand jurors were told to ignore the Missouri law – but given no other standard to use in assessing whether the use of deadly force was lawful.
  8. Witnesses before the grand jury may not have counsel with them in the room when they testify.   Defendants are often called, but they must be told that they are a target of the grand jury investigation.  Usually, they plead the right against self-incrimination and refuse to answer any questions.    What happened in the Ferguson case was highly unusual.  Not only did Darren Wilson testify, but he testified in narrative form without many interruptions from the prosecutor.   By contrast, the prosecutorial team cross-examined the eye witnesses, which brought out conflicts and inconsistencies in their testimony – but not in Wilson’s. 
  9. You can see a helpful chart showing the key elements of Wilson’s story and the extent to which each was corroborated or contradicted by the other eyewitnesses, thanks to PBS:  http://www.pbs.org/newshour/updates/newly-released-witness-testimony-tell-us-michael-brown-shooting/
  10. One reason why the case has been so conflictual is because prosecutor (McCulloch) is very close to the police.  His father, mother, brother, uncle and cousin were all police officers.  His father was killed in the line of duty, shot when responding to a call involving a black suspect.  Had McCulloch himself been going through voir dire to sit on the trial jury in the Ferguson case, he would have surely been removed for cause.    There were many calls for him to recuse himself in this matter, but he refused.
We can find a)  that grand juries don’t usually confirm charges in police shootings generally but also b) why even against that usual background, the grand jury in Ferguson was unusually problematic.

Grand juries usually have to decide by a 2/3rds or 3/4ths vote – unanimity (as far as I know) is nowhere required.    In the Ferguson case, the grand jury had 9 whites and 3 blacks with a ¾ voting rule.  The vote was secret but obviously it was numerically possible for the grand jury to block a “true bill” with only white votes.  

Federal Rules of Criminal Procedure, Rule 6 governs federal grand juries:  http://www.law.cornell.edu/rules/frcrmp/rule_6 .     In the federal system, one needs 12 jurors to return a “true bill” but the number of jurors on a panel can vary between 16 and 23.   As Jim rightly notes, jurors cannot be screened out of a panel in advance for conflicts of interest with particular cases – they are empaneled to hear months of cases at a time.   That said, the federal system permits challenges to individual jurors who are not “legally qualified” to sit on the grand jury.  

How grand juries are selected at the state level depends on state law which varies widely:

  1. For example, Texas alone has two different systems for grand jury selection:   http://www.tdcaa.com/journal/lone-star-grand-jury-selection-and-independence 
  2. The Missouri process seems to envision construction of a master list http://civilprocedure.uslegal.com/trial/jury-selection/missouri-jury-selection/   from which the jurors in Missouri are chosen by a judge.  http://www.thewire.com/business/2014/08/what-to-expect-at-tomorrows-grand-jury-in-the-michael-brown-case/378777/ .   The Missouri rules indicate that no juror may be disqualified from serving “because of race, color, religion, sex, national origin, or economic status” which seems to imply that there could be challenges under this legal standard.

The Ferguson grand jury was unusual because the  proceedings were made public.  Grand jury testimony is usually secret, and any grand juror can be prosecuted for disclosing grand jury testimony.  This is one reason why we know so little about how grand juries operate.  In virtually all cases, no one is talking.

On DA elections:   This really useful paper by Ronald Wright at Wake Forest http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Wright-FinalPDF.pdf summarizes what is and is not known about DA elections.  Here are the re-election figures that Jim wanted to know:

The chief prosecutors in the 2,344 separate prosecutorial districts in the United States hold very secure jobs. We can begin with the success rate of incumbents across all general election races: the sitting prosecutors won 71% of the general elections.  The more pertinent number, however, is the success rate of incumbent prosecutors in elections when they seek re-election. Because the incumbent sought re-election in only 75% of all general election campaigns, the  incumbent success rate when running for office was 95%.

The prosecutor controls what evidence to present to the grand jury.  There is certainly no need or requirement that he present everything to the grand jury.  Grand juries often hear lots of witnesses for complex crimes (e.g. organized crime rings), but people who follow grand juries more closely than I do say that this was an unusual number of witnesses to call for a relatively simple event (one cop, one victim, one location).    Again, remember that the standard is low:  the prosecutor only has to persuade 3/4ths of the grand jury that there is “probable cause” to believe that a crime has occurred.  

The sheer number of witnesses and the disclosure of the testimony after the grand jury hearing was over made it look like there was a regular trial.  But of course there wasn’t.   The normal procedures, protections and safeguards one finds in a trial are not operating in a grand jury setting.   Witnesses have no right to counsel present in the grand jury room.  The rules of evidence are not followed, so there is no bar to hearsay, inflammatory photographs and the like.   And there was no cross-examination as there would have been in a real trial because grand jury hearings are not adversarial processes.   Most crucially, the defense case was not presented – unless the prosecutor presented it instead.   

I’m stunned with the sheer magnitude of fatal police shootings in the US.   Here is a graph that shows number of fatal shootings by police in the US from FiveThirtyEight in an essay “Nobody Knows How Many Americans the Police Kill Each Year.”  As the title reveals, all measures are flawed, and they disagree.  




·         FBI = shooting deaths reported by local police departments to the FBI.  But many police departments don’t report – e.g. no police departments in Florida have reported since 1997.

·         NVSS = autopsy reports attributing cause of death to “legal intervention” (public health statistics).  But coroners don’t always know that a police officer fired the bullet that caused the death -  plus this number also apparently includes executions. 

·         BJS = Bureau of Justice statistics from household surveys, widely considered by criminologists to be the most accurate number – but it is slow to be published and requires someone living to report on someone who was killed, so it might not include now-dead people who living on the streets or with no family etc. 

But of course the biggest distortion in the estimate is that these figures only record the “justifiable homicides” in the case of the FBI numbers which implies that the unjustifiable homicides are apparently elsewhere classified.   And they mix up legal executions with shoot-to-kill on the streets in the case of the NVSS numbers.   And they include only “arrest-related homicides” in the case of the BJS, which means that police shootings outside of the arrest context are not reported. 

Race is a huge part of this story.   ProPublica analyzed the records of police shootings from 2010-2012 and found that black men were 21 times more likely to be victims of a fatal police shooting than were white men.   See http://www.huffingtonpost.com/2014/10/10/racial-disparity-police-killings_n_5965706.html for more details.     More estimates of racial disparities among those who are shot and killed by police can be found here:  http://www.motherjones.com/politics/2014/08/police-shootings-ferguson-race-data .   

Finally, because I’m usually a comparativist, I can’t resist the comparison:




Director, Program in Law and Public Affairs
Rockefeller Professor of Sociology and International Affairs
in the Woodrow Wilson School
and in the University Center for Human Values

 415 Robertson Hall, Woodrow Wilson School, Princeton University, Princeton NJ 08544
Phone:  +1.609.258.6949
Email:  kimlane@princeton.
Webpage:  LAPA.princeton.edu

Bert Kritzer <kritzer@umn.edu> wrote:
According to the source of all knowledge (Wikipedia), 29 states still "employ some form of use grand jury."

According to the Survey of Court Organization (http://cdm16501.contentdm.oclc.org/cdm/ref/collection/juries/id/180), 18 states require indictments for felony prosecutions, but most states do have grand juries for at least some purposes (presumably, in some states prosecution can flow from either a grand jury indictment or alternatively at the sole discretion of the prosecutor through an information).

James Eisenstein <j3e@psu.edu> wrote:
The maxim that prosecutors generally get what they want from a grand jury is a good formulation.

I learned in the 1960s from interviews with federal prosecutors about the strategies used to capture grand juries.  Bring the strongest, most horrific crimes to the grand jury at the beginning of its term.  They get in the habit of indicting.  Once confidence is gained, it isn't difficult to indicate to the grand jury during presentation of a case when a no bill is desired (to shift the blame for no indictment away from the prosecutor).  The can be done subtly communicated to the grand jury in a variety of ways.   Respondents also indicated that in some cases, they really didn't know whether to indict or not, so took it to the grand jury to decide after presenting the strengths and weaknesses of the case.   The St. Louis County grand jury began its work in April, and was very likely well accustomed to doing what the prosecutor wanted.

Some of the commentary I've seen argues that cases should not be prosecuted unless there is proof beyond a reasonable doubt.  However, not all prosecutors follow that principle.  Some adopt a "trial sufficiency" rather than "beyond a reasonable doubt" policy, arguing that merely having enough evidence to justify taking the case to trial with a reasonable change of conviction is good enough.

From: Jon Roland <jon.roland@constitution.org>
The present design, operation, and uses of grand juries is not consistent with the original understanding or intent of the Founders. To do that they would need to meet the following standards:

  1. Selected at random from the general public, with perhaps some filtering, but without "stacking".
  2. Selection by a neutral party (not the judge or prosecutor).
  3. Size of 23.
  4. Decision by 12.
  5. Election of foreperson by the members.
  6. Term of service long enough to learn how to do it.
  7. Limits on terms of service to avoid entrenchment.
  8. Adequate training of grand jurors.
  9. Prevention of undue influence by interested parties, especially judge or prosecutors.
  10. Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments.
  11. Enough time to examine each case, or enough grand juries.
  12. No impediment to access by public to members to present complaints or give testimony, except for reasonable scheduling.
  13. Acceptance of any person, not just a professional prosecutor, being appointed to prosecute a case by the grand jury granting him an indictment.
  14. Acceptance that a grand jury indictment removes official immunity from criminal prosecution.
  15. Acceptance that a grand jury finding of sufficient evidence of misconduct removes official immunity from civil prosecution.
  16. Establishment of rule that a grand jury must determine whether a court has jurisdiction before returning an indictment for that court.
  17. Avoidance of excessive or abusive use of grand jury to harass, intimidate, discredit, or injure persons.
  18. Prevention of misuse during trials of evidence obtained by grand jury.

For more on the subject see http://constitution.famguardian.org/jury/gj/gj-us.htm
-- Jon

Constitution Research               http://constitution.famguardian.org
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Home » Jurisdiction and Due Process » Jury Reform
Original URL: http://constitution.famguardian.org/jury/gj/ferguson_grand_jury.html
Jon Roland of the Constitution Society
Original date: 2014/12/13 —  
Last updated 2014/12/14