Update from a reader:
I’m a lawyer and I studied Epidemiology at Harvard, so I know bad and misleading statistics when I see them. Yes, failures to indict are rare, because under normal circumstances prosecutors only seek indictments when they have strong cases!
This is what we call “selection bias.” If Michael Brown had been white, there would have been no media outcry, and no protests (google “Dillon Taylor,” a white guy shot by police in Utah at the same time Ferguson was going down). Under normal circumstances, a prosecutor would have determined very quickly that Darren Wilson hadn’t done anything wrong, and the case would never have been presented to a grand jury.
In this case, because of outcry (stoked largely by early reporting that seemed to suggest that Wilson had gunned down Brown in cold blood for no reason,) the prosecutor had to take the case to a grand jury to appease the crowd. But the facts never supported an indictment.
We saw this before with Trayvon Martin; a prosecutor tries a fatally weak case under political pressure and inevitably fails. Paradoxically, this makes people more angry, because they don’t understand that these cases would never have been brought in the first place absent outcry.
Even Nate Silver has been passing around the rarity of failures to indict as if that tells us something about the current case. He should know better.
As the website admits, it is a chart of federal indictments, not state indictments. State and county grand juries fail to bring indictments in Missouri at a far higher rate, a quick perusal of Nexis shows.
More feedback “from a former criminal defense attorney”:
I think a lot of folks are missing the multitude of ways this grand jury was handled abnormally. Remember, it isn’t an adversarial proceeding; it is entirely under the control of the prosecutors. In a typical grand jury, the prosecutors do not present evidence that is obviously incorrect, such as the witnesses who said Wilson fired at a running Brown from inside the car. That’s obvious mistaken and therefore not evidence of anything.
Why did they bring out all that garbage before the grand jury? For the same reason that Fox News goes on a tirade over everything Obama, in the hopes that a cumulative impression will be formed that the witnesses were making things up, even as the individual elements of that narrative don’t hold up. And there’s no one in the grand jury room to say “well if you know this guy is wrong, why is he here?” But it was even worse than that. In the transcript, when witnesses testified that rather than running toward Wilson, Brown was actually staggering to the ground, the prosecutor said – in front of the grand jury! – “But that physical evidence contradicts your testimony.” (Which isn’t true – the physical evidence in this case is neutral on this critical point.) In other words, this was not, as McCulloch claimed, a presenting of all evidence, neutrally, to the grand jury. This was out and out advocacy for no indictment.
This is how its supposed to work: If the prosecutor does not believe he can win a conviction, the case ends there and doesn’t go to a grand jury. He exercises prosecutorial discretion. This happens ALL the time. If the prosecutor thinks he has a case, he goes to the grand jury and presents his case. He doesn’t present both sides because this isn’t an adversarial trial that can probe conflicting evidence. The sole question is whether the prosecutor can make his case. If there are witnesses who see a crime contradicted by witnesses who don’t, the trial jury decides after both sides question the witnesses. In the grand jury, the decision is merely whether the prosecutor can proceed. Then the indictment (or, more rarely, no indictment) is released during business hours, even in high profile cases. There are rarely press conferences, but when they occur the prosecutors lay out the charges. They do not advocate their case. They do not whine about social media. They do not speculate farther than the question at hand (In other words, all McCulloch had to say was that the grand jury found no basis for an indictment, yet he went farther and claimed the shooting was justified, an entirely different question.) They do not parade out discredited evidence.
I am open to the possibility that this was not a case that could end in conviction. But we cannot draw any conclusions about the facts from this travesty of a proceeding. It has no credibility. And I’m not even getting to the timing of the announcement – waiting hours and then 20 minutes more as the tension built and built, as if they wanted a riot.
(Chart via Philip Bump)