Sunday, December 7, 2014

Rewind: the decision (part I)

"If they want an indictment they are going to get an indictment. If they don't want an indictment it won't happen." — Timothy Lynch, co-author of “A grand Facade: How the Grand Jury was Captured by Government

Some of my pro-cop friends think that the decision by the Ferguson grand jury not to indict Darren Wilson in the shooting death of Michael Brown proves that Mr. Wilson was innocent of wrong doing.

It doesn't. Only a trial would have done that. Grand juries only decide whether or not to have a trial.

My pro-cop friends also seem to believe that since the grand jury chose not to have this case proceed to trial, there must not have been enough probable cause to do so.

It doesn't. 

What it proves is that St. Louis County Prosecuting Attorney Robert P. McCulloch didn't want the case to go to trial. If he had, Darren Wilson would have been tried. 

A grand jury is never required, and even if a grand jury is convened and does not indict, a prosecutor can still take a case to trial if he wants to. But then again McCulloch wasn't prosecuting; he was defending. 

Check out this article from FiveThirtyEight Data Lab and below that excerpts from a CBS News piece.

No trial, no justice IMO

It’s Incredibly Rare For A Grand Jury To Do What Ferguson’s Just Did
By Ben Casselman
November 24, 2014

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. 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. 

A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State University criminologist Philip Stinson has found that officers are rarely charged in on-duty killings, although it didn’t look at grand jury indictments specifically.

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.

Why grand jury indictments in police shootings are so rare
By Jan Crawford
December 4, 2014

The grand juries that decided not to indict officers Darren Wilson and Daniel Pantaleo are part of a system enshrined in the Constitution. The framers considered the grand jury an important check on government power.

But now there is growing criticism that government prosecutors can hijack the system to get results they want.

"The system is under the complete control, under the thumb, of prosecutors," said the Cato Institute's Timothy Lynch, who co-authored a 2003 scathing analysis: "A Grand Façade: How the Grand Jury was Captured by Government."

"If they want an indictment they are going to get an indictment," he told me. "If they don't want an indictment it won't happen.” 

“Prosecutors are often unwilling to take on the police department because they work with the police week in and week out," explained Lynch.

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