Extremely rare for grand jury not to return indictment, statistics show

Dylan Stableford
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Ferguson Police officer Darren Wilson at the hospital hours after the shooting of Michael Brown in Ferguson, MO. Released on November 24, 2014 as part of the evidence the grand jury considered. (St. Louis County Prosecutor's Office)

Darren Wilson Ferguson grand jury evidence

The grand jury's decision not to indict a white police officer, Darren Wilson, in the fatal shooting Aug. 9 of an unarmed black teenager, Michael Brown, in Ferguson, Mo., was historic for many reasons, including the fiery protests that erupted in its wake. It was also historic in that it is rare for a grand jury not to return an indictment.

In the more than 162,500 cases prosecuted by U.S. attorneys from 2009 to 2010, grand juries voted not to return an indictment in only 11, according to data from the Bureau of Justice Statistics — equivalent to one in 14,759 cases, or 0.0068 percent.

However, the figures are not directly comparable, as Ben Casselman writes on FiveThirtyEight.com. The Michael Brown case was heard in state, not federal, court.

It nevertheless remains extremely unusual, legal experts say.

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” University of Illinois law professor Andrew D. Leipold told the website. “It just doesn’t happen.”

But grand juries do not often indict police officers, at least at the state level.

Data cited by Casselman shows that "officers are rarely charged in on-duty killings":


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.


Part of the reason is that police officers are empowered to use force when they reasonably fear imminent physical harm, the Washington Post noted in August:



The law that determines when police can use deadly force generally gives officers considerable leeway in making that split-second decision about whether they need to kill to save themselves or others. Law enforcement experts say the legal standard, established by two Supreme Court rulings from the 1980s, has made it hard for prosecutors to obtain convictions in cases of alleged use of excessive force.


Wilson told investigators that Brown punched him multiple times in the face as the teen pinned him inside his vehicle, and that he feared the next blow might be fatal, which he said led him to draw his weapon.

"For a cop to be indicted, and especially to be convicted later, of a crime in these kinds of situations is very, very unusual," Chuck Drago, a former Oviedo, Fla., police chief, told the Associated Press.

"A police officer is not like a normal citizen who discharges their weapon," a Chicago lawyer, Lori Lightfoot, told the AP. "There is a presumption that somebody who is a peace officer, and is thereby authorized to use lethal force, used it correctly."

U.S. Attorney General Eric Holder said Monday night that the Justice Department is still pursuing two investigations related to the Brown shooting.

"While the grand jury proceeding in St. Louis County has concluded, the Justice Department's investigation into the shooting of Michael Brown remains ongoing," Holder said in a statement.

Federal prosecutors are still looking into whether Wilson should face civil rights charges in the controversial case. At the same time, the Justice Department is continuing a broader inquiry into the widely criticized policing practices of the police department in Ferguson, a mostly black suburb of St. Louis where tensions have existed for years with police and community officials, who are mostly white.

According to Holder, the Justice Department "continues to investigate allegations of unconstitutional policing patterns or practices by the Ferguson Police Department."

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