Ferguson Grand Jury’s No-Indictment Is Rare Says UI Prof

A University of Illinois law professor says a Missouri grand jury’s decision not to indict Ferguson police officer Darren Wilson in the death of teen-ager Michael Brown is an unusual one.

Professor Andrew Leipold directs the Program in Criminal Law and Procedure in the College of Law at the Unviersity of Illinois Urbana campus. He says that in most cases, when a prosecutor decides to bring a case before a grand jury, the grand jury responds with an indictment against the suspect.

But he says, "it is an unusual situation for a prosecutor to be convinced that the suspect, the target, was guilty of some crime, to seek an indictment from the grand jury and not to get it.”

Leipold says conditions for state grand juries can vary. But he says that on the federal level at least, when a grand jury decides not to return an indictment, it’s usually due to one of two reasons.

One is because the prosecutor was genuinely unsure about the case and sought the grand jury’s input.

And Leipold says he believes there are cases where a prosecutor secretly opposes an indictment, even though he hasn't seen any firm evidence for specific cases.

"It must be the case, we just know this about human nature", said Leipold, "that if the prosecutor wants some (to put it cynically) political cover, or (to put it less cynically) wants some community input to help making the judgment, of course that happens. We don’t know how often. But it is surely true that prosecutors are comforted by the fact that a grand jury decides not to go forward in a difficult case."

Leipold is a critic of grand juries, says he doesn't think they are very good "filters" that can provide a meaningful check on prosecutors.

"I think grand juries are very effective investigative tools, can gather a lot of evidence through subpoena power", says Leipold. "Whether the institution is worth all that or whether we should just be more transparent and say this is a prosecutor decision, I’m not sure. But if what we’re looking for is a shield to stand between the accused and the government … I’m not sure they’re very good at that."