As outrage builds about the failure to indict the officer who shot Michael Brown in Ferguson, Missouri, I wanted to take a moment to reflect on the work of the grand jury itself. This blog focuses on criminal and civil juries that decide cases, not on grand juries that decide whether to indict. In the public’s mind, however, both stand as “juries” and so into the fray we go.
First off, one may have heard the expression that a grand jury would indict a ham sandwich. The point is not that grand juries are vegan, but rather they tend to view their job as letting cases proceed to trial and only putting the brakes on those charges that stand on no evidence whatsoever. What makes this case odd is the lack of conviction demonstrated by the prosecutor, as noted by several observers. A recent piece in The New Yorker put it this way: “aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment.”
But hold on. There appears to be a counter-tendency in grand juries when it comes to finding “probable cause” in charges against police officers. A thoughtful article on the subject appeared in, ulp, Russia Today. (Yes, it’s a Russian-funded news source, but the bits of it I’m citing are noncontroversial, along the lines of a similar piece in FiveThirtyEight.) First up is the fact that only a third of police misconduct complaints result in convictions (only 12 percent in incarceration).
This, in turn, flows back to a 1989 Supreme Court case:
In Graham v. Connor, Chief Justice William Rehnquist wrote in his opinion: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Which brings us back to the work of the grand jury itself. Again, I turn to a non-traditional source, the ideologically-infused Washington Times, for an observation that rings true: the grand jury did its job. The logic of that particular article is a bit twisted (e.g., by deviating from standard practice, the prosecutor sought “justice” rather than an indictment that would simply keep the case in court until an inevitable not-guilty verdict was reached). Even so, it emphasizes the point that given the evidence presented and the way it was presented, the grand jury reached a sensible conclusion in this case.
And as noted at this blog in the case of the Zimmerman shooting in Florida, the jury rarely nullifies the law, but rather holds a mirror up for society to see the implications of the laws it chooses. My expectation is that this case will accelerate the pace of relevant legal reforms–from better camera use at time of arrest to better procedures for indicting police–but that acceleration will be subtle. Decades, not years, will pass before these problems are well addressed.
In the meantime, expect to see another jury on this case should there be a civil trial coming soon. I expect one, and I expect the evidence will be sufficient to find for the family of Michael Brown. But remember that when that case comes, the jury will only know what the jury sees, and what it sees will depend on the judge, the rules, and the attorneys. In that case, however, the Browns will have an attorney of their own, and s/he will probably carry the day.