In Charlotte, Ferguson & elsewhere, grand juries rarely fail to indict

Grand juries rarely decline to indict

CHARLOTTE, N.C. -- Last September, a Charlotte-Mecklenburg Police officer named Randall Kerrick shot Jonathan Ferrell 10 times after Ferrell crashed his car on Reedy Creek Road and knocked on a stranger's door in the middle of the night, prompting a 911 call.

But when prosecutors brought their case to the grand jury, the grand jury failed to return an indictment. In fact, out of 277 cases that week, Kerrick was the only person not indicted by a grand jury.

"It's very rare, in almost any case, for a grand jury to return no true bill," says S. Frederick Winiker, an attorney not connected to the Kerrick case or to the Michael Brown case, where a grand jury in Missouri also declined to indict a police officer for shooting and killing someone while on-duty.

"Normally the evidence they hear is what the prosecutor decides to submit to a grand jury."

A grand jury is not the same as a petit jury, which is what we see during actual trials. All a grand jury has to do is determine whether there's enough evidence to proceed to trial-- to return an indictment. They typically operate in secret, and a prosecutor is the only lawyer present to question witnesses.

If a prosecutor thinks he or she has a good case at trial, they don't have to submit every piece of evidence they have. They only have to present certain the evidence they need to make their case. Obviously that changes at trial, but it's pretty much a universal sentiment among lawyers-- if prosecutors want an indictment, they can get it.

There's data to back that up. At the federal level, out of 168,000 cases brought in 2010, grand juries declined to return an indictment just 11 times. That led to a famous quote from a judge in New York state, who said a prosecutor could persuade a grand jury to "indict a ham sandwich".

In the Michael Brown case, prosecutors said they brought as much evidence as they had.

"What's very unusual in this case is that the prosecutor, apparently from August 20 until just this past Monday, submitted an awful lot of evidence to that grand jury, including what's called exculpatory evidence or evidence that might lead someone to find him not guilty if it were in a trial setting," says Winiker. "That's unusual at a grand jury stage."

In the Kerrick case, prosecutors in Charlotte brought their case to another grand jury.

"Hopefully they will see the evidence this time and reach what we believe will be the right conclusion and indict officer Kerrick," Ferrell family attorney Charles Monnett said in January.

They did, and Kerrick's trial is upcoming.


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