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.
That's via FiveThirtyEight. Those are federal numbers, and this case was heard in state, so it's not a perfect comp, but speaking to my sister and other lawyers, failure to get an indictment is still extremely rare.
Despite the grand jury leaks, somehow I held out hope, perhaps naively, that they'd still decide to indict.
The prosecutor had long said that he'd release evidence if the grand jury failed to reach an indictment, but the judge has not agreed to it yet.
St. Louis County Prosecuting Attorney Robert McCullough has repeatedly stated that he would obtain a court order to unseal grand jury evidence, an unusual step that was seen as an attempt to defuse potential anger over the decision. In a St. Louis Post-Dispatch story on Nov. 23, St. Louis County Court Administrator Paul Fox said Judge Carolyn Whittington had agreed to grant the request.
But Fox described the paraphrased quote attributed to him as “not accurate,” in a letter released after the story, and said Whittington had not made an agreement to release grand jury evidence and that any requests “will require the Court to analyze the need for maintaining secrecy of the records with the need for public disclosure of the records.”
It's perhaps self-serving on the part of the prosecutor, a way to show he did everything possible to secure an indictment, but let's hope the judge agrees to release the evidence. Even without that, given the grand jury transcripts that have already been released and the full sum of reporting that has already been donee, I'd love to see a Serial-like podcast from a lawyer or criminal law expert walking through the events on the night of the shooting and the subsequent investigation and court case.
Twitter is somewhat of a comfort now, a way to feel connected to the collective anguish of much of the country, but in a few months, maybe sooner, some will start tweeting "Remember Ferguson?" as some collective reprimand of our short term memory. Very soon, 140 character outbursts won't be enough, and that's where a longer form medium like a serial podcast would feel more appropriate.