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:
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
- 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
- That said, police shootings routinely fail to go to
- Here’s an excerpt from a recent Wall Street
Journal report on a Bowling Green study of police
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.
- FiveThirtyEight collected a broader array of
statistics on the prosecution of police for use of excessive
. They confirm that police being tried for
shooting a suspect in the line of duty is a rare occurrence.
- 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.
- 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
§ 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.
- 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)
- 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.
- The first journalist to pick up this problem with
Lawrence O’Donnell of MSNBC, himself a former
. 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.
- 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
- 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
- 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.
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
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:
- For example, Texas alone has two different systems for
grand jury selection: http://www.tdcaa.com/journal/lone-star-grand-jury-selection-and-independence
- 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.
. 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:
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
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
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
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.
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:
in Law and Public Affairs
Rockefeller Professor of Sociology
and International Affairs
in the Woodrow Wilson School
and in the University Center for
415 Robertson Hall, Woodrow Wilson School, Princeton
University, Princeton NJ 08544
Bert Kritzer <email@example.com> 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 <firstname.lastname@example.org>
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 <email@example.com>
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
- Selected at random from the general public, with perhaps some
filtering, but without "stacking".
- Selection by a neutral party (not the judge or prosecutor).
- Size of 23.
- Decision by 12.
- Election of foreperson by the members.
- Term of service long enough to learn how to do it.
- Limits on terms of service to avoid entrenchment.
- Adequate training of grand jurors.
- Prevention of undue influence by interested parties,
especially judge or prosecutors.
- Secrecy of grand jury deliberations, while they are going on,
but with allowance of disclosures in their presentments.
- Enough time to examine each case, or enough grand juries.
- No impediment to access by public to members to present
complaints or give testimony, except for reasonable scheduling.
- Acceptance of any person, not just a professional prosecutor,
being appointed to prosecute a case by the grand jury granting
him an indictment.
- Acceptance that a grand jury indictment removes official
immunity from criminal prosecution.
- Acceptance that a grand jury finding of sufficient evidence of
misconduct removes official immunity from civil prosecution.
- Establishment of rule that a grand jury must determine whether
a court has jurisdiction before returning an indictment for that
- Avoidance of excessive or abusive use of grand jury to harass,
intimidate, discredit, or injure persons.
- Prevention of misuse during trials of evidence obtained by
For more on the subject see http://constitution.org/jury/gj/gj-us.htm
Constitution Society http://constitution.org
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