Grand Jury System, With Exceptions, Favors the Police in Fatalities

CreditCreditSam Hodgson for The New York Times

The circumstances of the case, like others before it and others that would follow, in Ferguson, Mo., and Staten Island, were familiar. A police officer killed an unarmed man. The officer claimed he acted appropriately. A grand jury declined to bring charges.

But the state’s case in Charlotte, N.C., against Officer Randall Kerrick, would not end there. The state attorney general’s office, which inherited the case after the local prosecutor recused himself, quickly resubmitted the case to a different grand jury.

Evidence was reheard. Twice as many as witnesses were called. And in January, the second grand jury indicted Officer Kerrick on charges of voluntary manslaughter in the death of Jonathan Ferrell, 24, a former college football player.

The extraordinary steps taken in North Carolina — along with the recent grand jury decisions to bring no charges against white police officers who killed unarmed black men in New York and Missouri — illustrate how the justice system can favor the police, often sThielding them from murder or serious manslaughter charges.

The balance tips toward the police from the start: In most felony cases, an arrest is made and a grand jury indictment follows within a prescribed period of time. But in police fatality cases, prosecutors generally use special grand juries sitting for lengthy periods to investigate and gather evidence before determining if an arrest and indictment are warranted.

Another hurdle is the law itself. Most states give officers wide discretion to use whatever force they reasonably believe is necessary to make an arrest or to protect themselves, a standard that hinges on the officer’s perceptions of danger during the encounter, legal scholars and criminologists say.

“The whole process is really reluctant to criminalize police behavior,” said Eugene O’Donnell, a former prosecutor who teaches at John Jay College of Criminal Justice in Manhattan. “The grand jurors are, the jurors are, the judges are, the appellate courts are.”

The recent decisions to refrain from bringing charges on Staten Island and in Ferguson have sparked protests because, among other things, they seem to defy logic: Shouldn’t the cases be heard at trial, many protesters have asked, and be decided by a full jury?

The questions have strengthened calls for wholesale changes in the grand jury system. Some elected leaders in New York have called for special prosecutors, or the attorney general, to investigate all fatal police encounters. Others say the current process should be stripped of its cloak of secrecy.

No precise figures exist for the number of people killed by the police in the United States, but police departments each year voluntarily report about 400 “justifiable police homicides” to the Federal Bureau of Investigation; it is an incomplete count, criminologists say

Rarely do deaths lead to murder or manslaughter charges. Research by Philip M. Stinson, a criminologist at Bowling Green State University, reports that 41 officers were charged with either murder or manslaughter in shootings while on duty over a seven-year period ending in 2011. Over that same period, police departments reported 2,600 justifiable homicides to the F.B.I.

Officer Kerrick was the first Charlotte-Mecklenburg police officer charged in a fatal shooting in more than 30 years. He was one of several officers who responded to a 911 call, placed by a woman who was alarmed by a stranger knocking at her door at 2:30 a.m.

Moments earlier, Mr. Ferrell, a former safety for Florida A&M University, had gotten into a car accident, and his vehicle had crashed into the trees. He had walked a half-mile or so to seek help. Instead, Mr. Ferrell, who was black, was mistaken for a burglar.

Officers arrived 11 minutes after the call and approached Mr. Ferrell. Police officials said Mr. Ferrell ran toward the officers, who fired a Taser but missed. When he continued to press forward, Officer Kerrick fired 12 bullets, 10 of which struck Mr. Ferrell.

CreditTodd Heisler/The New York Times

Charles G. Monnett III, a lawyer for Mr. Ferrell’s parents, said the indictment would not have come had the state prosecutor not taken the case over from the Mecklenburg County district attorney. “The district attorney’s office works way too closely with the local police department and individual officers to be able to objectively look at these cases,” he said.

For most felonies, grand jury hearings are swift, bare-bones proceedings. Prosecutors present enough evidence to show it is probable that the defendant, who rarely testifies, committed a crime, and ask the jury to vote for an indictment. Several cases are usually processed in a single day.

But because most prosecutors impanel a special grand jury to investigate police-related deaths, they insulate themselves from the final decision, while appearing to fulfill the public desire for an independent review, legal experts said. The inquiries often go on for weeks or months, with testimony from several witnesses.

The proceeding is transformed into a trial of sorts, behind closed doors but without cross-examination. Prosecutors control what witnesses appear and in what order, legal scholars said.

In most cases, the officer provides his or her account; prosecutors can decide to let an officer’s version of events go unchallenged or to discredit it with cross-examination. They can do the same with other witnesses.

“If the prosecutor wants an indictment she or he is probably going to get one because they do have so much control over the grand jury,” said Andrew D. Leipold, a law professor at the University of Illinois who is an expert on grand juries. “The accountability for the decision to charge or not to charge rests with the prosecutor, not with the grand jury.”

The grand jury investigating the death of Eric Garner on Staten Island sat for nine weeks and heard 50 witnesses, including Officer Daniel Pantaleo, who was videotaped as he used his arm to choke Mr. Garner from behind during a fight to subdue him. A medical examiner ruled Mr. Garner died because of the compression of his chest and neck during the struggle, but also listed his obesity, asthma and high blood pressure as contributing factors. Mr. Garner said several times that he could not breathe.

Geoffrey P. Alpert, a criminologist at the University of South Carolina who studies the use of force, said police officers are rarely indicted when they express remorse to jurors, admit they made a mistake, and stress that they were following their training, as Officer Pantaleo had. In shooting cases, officers often testify that they perceived a deadly threat and acted in self-defense. This stance can inoculate them even if the threat later turns out to be false.

Pete Hautzinger, the district attorney in Mesa County, Colorado, said the notion prosecutors lead grand juries to a predetermined conclusion is false. Though he rarely uses a grand jury on most felonies, he chose to present evidence to a special grand jury in 2010 against a state trooper, Evan Lawyer, who had shot and killed an unarmed man after he refused to open his front door. The prosecutor said he wanted a “sounding board” to validate his belief that there was enough evidence not only to warrant a trial, but eventually convict the trooper.

“How do ordinary people react to these facts, and what do they think is right here?” he said. Trooper Lawyer was indicted and eventually acquitted at trial.

Even when there is no hint that a victim was armed, it is difficult to bring a homicide charge if the officer claims the death was an accident, legal scholars say. Murder and manslaughter require proof that the officer intended to kill or harm the victim. To bring a second-degree manslaughter charge, one must show that the officer recklessly disregarded the risk inherent in his or her actions. Criminally negligent homicide requires a finding that the officer’s actions were “a gross deviation from the standard of care that a reasonable person would observe.”

The jury’s only guide through the thicket of legal concepts is the prosecutor. “The notion that average people are going to delve into these complex legal issues and get them right is bizarre,” Professor O’Donnell said. “You are doing a deep dive on issues of justification, criminal negligence and recklessness.”

Still, many prosecutors reject the notion that they control the grand juries’ conclusions. They also point out that the panels have worked for centuries to protect the rights of the accused and shield witnesses who might otherwise not testify.

“It tends to be a much more full exchange about gathering the evidence than individuals on the outside understand or believe,” said Cyrus R. Vance Jr., the Manhattan district attorney. “It is a secret process. Folks don’t know that much about it. But in practice, particularly in long investigations, I think the grand jurors are very active.”

He added: “I’ve had grand jurors which were very aggressive in trying to get me to put in evidence that I had not previously considered to put in.”


Because of an editing error, an article on Monday about the rarity of indictments of police officers through the grand jury system referred incorrectly to a shooting in North Carolina last year when the police killed Jonathan Ferrell, an unarmed black man. Police officers initially fired a Taser at Mr. Ferrell, but missed; the Taser did not strike him. (Later an officer fired 12 bullets at Mr. Ferrell, striking him 10 times.)

Jack Begg and Erik Eckholm contributed reporting.

A version of this article appears in print on , Section A, Page 1 of the New York edition with the headline: A System, With Exceptions, That Favors Police in Fatalities. Order Reprints | Today’s Paper | Subscribe