It is an old joke that a Grand Jury would indict a ham sandwich if you wanted them to.
The joke comes from the reality that Grand Jury proceedings are kind of a sham.
First, the burden of proof at a Grand Jury proceeding is probable cause. The prosecutor must prove that there is probable cause to bring criminal charges against the Defendant. Probable cause is the lowest burdens of proof. The only burden of proof lower is ‘reasonable suspicion’. The burden an officer must have to stop a vehicle for example.
Second, neither a defense attorney, nor the defendant himself can be present at the Grand Jury proceeding. The proceedings are closed proceedings. You can imagine what the consequences are when you have one hand clapping. The prosecutor’s bias view rules the day. There are rules of conduct that require the prosecutor to present evidence in mitigation, but you can only imagine the half hearted presentation that this evidence is given.
Consequently, anytime a prosecutor wants to indict a Defendant on a felony charge, he can do so. It is a very rare occurrence for a Grand Jury to refuse to indict a Defendant.
That is what is so interesting about the Ferguson case. Why didn’t the Grand Jury indict the officer that shot Michael Brown? At a minimum it appears that there were conflicting statements from witnesses, some witnesses that say that Michael Brown was surrendering and still being shot. Whether these witnesses are credible or not, why didn’t the grand jury at least find probable cause? Did the prosecutor sabotage his own case in order to shift blame from himself to the Grand Jury? Now the prosecutor can say, well I tried to charge the officer, but the Grand Jury refused to find probable cause.
What bothers me the most is not that the Grand Jury failed to indict the officer. What bothers me is that under no circumstances would a Grand Jury have failed to indict anyone else that wasn’t wearing a badge. There is a double standard in our country when it comes to self defense. When an officer of the law defends himself, he is nearly always given the benefit of the doubt, and nearly always cleared of any wrong doing. Anytime any other citizen defends themselves they face the very real possibility that they will be charged and convicted of murder.