Two grand juries decided not to indict the police officers who killed Brown in Ferguson, Missouri, on August 9 and Garner in New York City on July 17. Both juries deliberated behind closed doors, their conversations entirely influenced by evidence that elected prosecutors have put before them. And the end result was typical for criminal cases that involve police officers.
Criminal justice experts say the fact that prosecutors in these two instances couldn't get an indictment through a system they largely control shows that something went wrong or that they never wanted an indictment in the first place. And for critics of police shootings, the non-indictments have fostered further distrust in a criminal justice system that's already criticized for massive racial disparities.
"You and I probably wouldn't be having this conversation if indictments were returned," said Thomas Nolan, a criminologist at the Merrimack College of Massachusetts. "People would have been convinced that the process at least played out, rather than having some sneaky business behind closed doors."
How grand juries currently work
Grand juries originated in medieval England to provide a check between the accuser and the accused in criminal cases. The US, Australia, Canada, and other (former and current) British territories adopted the tradition. But grand juries have been abolished in other countries because the process was widely deemed as too secretive and easily manipulated by prosecutors.
This leaves the US as one of the few countries to still allow them — although state laws and norms on how they're used vary. In some jurisdictions, prosecutors can seek out public preliminary hearings that work more like a formal trial than secretive grand juries. But if they have a choice, prosecutors typically prefer grand juries because they're much easier to control and allow them to present evidence without public scrutiny.
John Roman, a senior fellow at the Urban Institute's Justice Policy Center, said grand juries were adopted in the US to provide a check on prosecutors' powers, especially a prosecutor's ability to press charges against political opponents. The idea is the grand jury would provide a buffer for people facing serious criminal charges by forcing a prosecutor to get approval from the defendant's peers.
During grand jury proceedings, jurors are presented with evidence and asked to decide whether or not someone should be charged with a crime. If they choose to indict, the case goes to court. If they don't, the case is effectively over.
These proceedings are typically secret. Participants are supposed to stay quiet about the hearings, even after a decision is reached. Leaks during the proceedings are grounds for restarting the entire process. The secretive nature is supposed to protect witnesses and unindicted defendants from potential retribution.
The prosecutor — typically an elected local position — has almost complete control over what evidence the grand jury sees and hears. Since prosecutors have so much control over the evidence, getting an indictment is generally perceived as easy.
"The old saying is a prosecutor can get an indictment on a ham sandwich," Roman said. "It's very easy for a prosecutor to get a grand jury to get them to do whatever it is they want them to do."
In the Michael Brown case, St. Louis County Prosecuting Attorney Robert McCulloch didn't, by his own admission, try to seek an indictment. He instead presented all the evidence possible, even testimonies he knew were false, to the grand jury. McCulloch said this was meant to provide all sides of the story for the Brown shooting. But Roman argued McCulloch was actually flooding the grand jury with too much contradictory evidence, purposely making it more difficult for jurors to agree to an indictment.
The issue with grand juries and police shootings
The grand jury system, criminal justice experts say, gives prosecutors wide discretion to protect friends and allies.
This may be particularly true for cases involving local police departments. When prosecutors are seeking to charge people for crimes, they need local police to look into the subjects of a case and invest their resources — from wiretaps to on-the-ground searches — into a full investigation. This isn't necessary just for prosecutors to do their jobs correctly, but also for their political survival. Prosecutors are often elected on law-and-order platforms that are bolstered by blockbuster indictments and convictions.
"In order for them to be effective and successful in doing that, they absolutely need the cooperation and to have a strong positive relationship with the police," said Nolan of Merrimack College of Massachusetts. "They do work in the courts … everyday with police officers. They forge professional relationships with them. Sometimes they have personal relationships with them."
How to change the grand jury process
When experts talk about changing the grand jury system and police shootings, the main goal is to diminish the conflict of interest created by the working relationship between prosecutors and police.
One way to change the process would be to require someone, preferably a state or federal official, to appoint an independent prosecutor to any case that involves local police. This would remove, Nolan claimed, potential conflicts of interest since an independent prosecutor wouldn't have the ties to local cops that a local or state prosecutor might have.
The idea seems to have bipartisan support. A recent survey of 1,000 US adults from the Washington Post and ABC News found 97 percent of liberal Democrats and 76 percent of conservative Republicans support appointing independent prosecutors for police shooting cases.
But some are skeptical the idea would go far enough. Roman of the Urban Institute said he's concerned that it would be very difficult to find a truly independent prosecutor. His preference would be to abolish grand juries altogether, except in cases in which a witness's life could be in danger and the anonymity afforded to a grand jury would offer some protection. That would push most cases, particularly those involving police, to the more standard, public discovery, deposition, preliminary hearing, and trial processes.
"I don't see what we gain in these cases by doing it through a grand jury process," Roman said. "And there's a lot of ill will, as can be seen in the streets, because that's how these cases were pursued."