As the saying goes, a grand jury would indict a ham sandwich. But in a few select jurisdictions in recent months, that saying has proved false.
In federal felony cases, prosecutors must secure an indictment from a grand jury before officially charging someone. But the process is so one-sided – only the prosecutor can present evidence and call witnesses during the secret proceeding, and the prosecutor can call multiple grand juries in the same case within a 30-day time period – that a grand jury declining to indict is virtually unheard of.
Yet, in two cities where the Trump administration has deployed a heavy federal law enforcement and military presence, saying it wants to crack down on violent crime and immigration offenses, federal prosecutors have failed to secure an unusually high number of grand jury indictments.
Why We Wrote This
Prosecutors typically have little difficulty securing indictments from federal grand juries. In Washington and Los Angeles, where President Donald Trump has surged troops and federal agents, juries have issued a string of rare rejections, highlighting the citizen’s role in the U.S. judicial system.
Caveats abound. Grand jury proceedings are secret, so it’s unknown why certain cases resulted in a no-bill (a refusal to indict). The two cities, Washington and Los Angeles, are considered Democratic strongholds where majority anti-Trump jury pools are likely. And, this trend is still a minor one: The documented refusals to indict in the two cities still number in the single digits. But even one no-bill is very rare.
In the 2010 fiscal year, federal grand juries refused to issue indictments in only 11 cases, according to the Bureau of Justice Statistics. For two cities to almost match that number in a matter of months is notable, and is a reminder that citizens themselves are key players in the U.S. justice system.
“It looks to me like grand jurors are finding their voice,” says Laurie Levenson, a former federal prosecutor and a professor at Loyola Law School in Los Angeles.
“The point of the grand jury in our democratic process is to have members of the community make a [charging] decision,” she adds. “That seems to be what’s happening here, even though in the past we haven’t seen much of that.”
The nation’s capital is where the trend has been most visible. Last month, federal prosecutors failed at least five times to secure a grand jury indictment, according to court records. In Los Angeles, several felony charges related to anti-immigrant protests in June have been dismissed or downgraded to misdemeanors. Prosecutors in those jurisdictions have pushed back against suggestions that they are doing their job improperly, instead leveling accusations at the grand juries themselves.
“The system here is broken on many levels. This is the essence of a politicized jury,” said Jeanine Pirro, the U.S. Attorney for the District of Columbia, in a statement.
Allison Bailey/NurPhoto/AP
In one case, the government tried – and failed – three times to secure a grand jury indictment. Sydney Lori Reid had been charged with assaulting a federal officer in July during a protest outside an immigrant detention center. Last week, having reached the 30-day time limit by which a grand jury needs to indict, the government reduced the charge to a misdemeanor.
Because grand jury proceedings are private, no one knows for sure why this small spike in no-bills is happening. But experts believe it’s no coincidence that the spike is happening in cities where the Trump administration has chosen to surge federal law enforcement and military personnel.
“The torrent of fairly high-profile denials are all in those areas,” says Josh Blackman, a professor at South Texas College of Law Houston, in an email.
“It could be that grand jurors are carefully attuned to the line between felonies and misdemeanors,” he adds. “I am skeptical of that.”
The letter of the law could be a factor, however. In other words, grand jury indictments could be failing because the jurors don’t believe the government has enough evidence to support its charges.
In Washington, Ms. Pirro has reportedly told her prosecutors to maximize the charges they file in their cases. A similar directive has reportedly been issued to federal prosecutors in Los Angeles. (Grand juries in LA have returned some indictments in recent weeks, often in cases involving people attacking federal agents with weapons.)
Or perhaps both factors are at play. Potential for prosecutorial overreach, combined with a heavy law enforcement presence throughout a city, could explain why grand jurors are skeptical of the government’s arguments in these cases.
Take the most famous example. Having become an internet celebrity after throwing a Subway sandwich at a Border Patrol officer last month, Sean Dunn was arrested and charged with assaulting a federal employee. Two weeks later, a grand jury returned a no-bill.
“People know that if it had been some ordinary citizen, not a representative of the government, that [he] threw a sandwich at, he would not be looking at a felony prosecution,” says Clark Neily, senior vice president for legal studies at the Cato Institute.
“Grand juries really are in some ways serving as the conscience of their community,” he adds. “I think it’s no surprise we’re seeing it now.”
