Federal prosecutors from the Department of Justice failed to get an indictment from a grand jury against Sean Dunn, the man who threw a Subway sandwich at a Customs and Border Protection officer. It marks the second time this week a Washington, D.C., grand jury rejected an indictment from the U.S. Attorney’s office.
Grand jury indictments
Federal prosecutors wanted to bring felony assault charges against Dunn and needed a grand jury to approve of that. A grand jury is made up of up to 23 citizens, of which 12 need to vote in favor of the indictment.
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How often are prosecutors able to get those indictments?
“Almost always,” Andrew Leipold, professor at the Univ. of Illinois School of Law, told Straight Arrow News. “Prosecutors routinely get indictments when they want them.”
Leipold added it’s “pretty rare” for grand juries to reject indictments, known as no true bill.
“It doesn’t happen very often, in part because prosecutors are repeat players,” Leipold said. “They go in front of grand juries all the time. They know what they need to present to get an indictment, and if they don’t think they have it, then they just won’t bring the case to the grand jury in the first place.”
Recent data on grand jury rejections is hard to find but data from 2010 shows of the 193,000 cases pursued by U.S. attorneys, only 11 of them, or 0.006%, ended because a grand jury did not return an indictment.
“It’s very rare for a prosecutor of any kind in front of a grand jury to fail to obtain an indictment,” Heather J. Mattes, a Pennsylvania criminal defense attorney, told Straight Arrow News. “Because first of all, the prosecutors control the information that goes before the grand jury.”
Unlike a trial jury, a grand jury only hears from the prosecution. They also only need “probable cause” to indict, whereas a trial jury needs “beyond a reasonable doubt” to convict.
What happened in Sean Dunn’s case?
“I like to think that what happened here was that the grand jurors saw the evidence and they said, ‘this doesn’t deserve a grand jury indictment,’ that you haven’t proven your case,” Mattes said. “You have to show that somebody is doing something that rises to the level of a federal felon. And I can’t tell you what was in the minds of the jurors, but it certainly is encouraging to think that these prosecutions were turned back by fellow Americans who saw who judged the quality of these prosecutions for themselves.”
Video showed Dunn throwing the sandwich at the officer so what happened is not likely what motivated jurors to make that decision. Grand juries are also secretive, and jurors do not need to explain their decision.
“Jurors may have thought, our responsibility is not just to decide whether the prosecutor could prove its case, but to decide whether charges should be brought in the first instance,” Leipold said.
The 37-year-old Dunn threw the sandwich at the agent who was deployed by President Donald Trump to curb crime in the city. Crime has gone down since the deployment but the move has been unpopular with D.C. residents who make up the grand juries.
“It was an act of resistance by a panel of citizens who often would follow the lead of the local prosecutor,” Jeffrey Fagan, law professor at Columbia University, told Straight Arrow News. “But this is a federal case, and the rejection of the charges by a federal prosecutor is a rejection of the federal enforcement program. Given polling showing consistent public disapproval of the policy, it’s not a surprise that the grand jury would nullify the attempt to impose a criminal charge, or any charge.”
What happened in Sidney Reid’s case?
The rejection in the Dunn case comes just two days after another Washington, D.C., grand jury declined a third time to indict Sidney Reid. Reid stands accused of assaulting an FBI agent during an inmate swap with ICE.
If grand juries fail to return an indictment, prosecutors can keep trying as long as they want.
Double jeopardy prevents someone from being tried twice for the same crime. However, if a grand jury refuses to indict, that person hasn’t been put in jeopardy at all.
“There’s no legal bar to that,” Leipold said. “Whether it’s a good idea or not…reasonable people might debate that one.”
Following their third failure to secure an indictment, U.S. Attorney for D.C. and former Fox News host Jeanine Pirro’s office filed misdemeanor charges against Reid.
“The system worked,” Mattes said.
Cost to taxpayers
Grand juries aren’t free.
“You have to pay the court stenographer,” Mattes said. “You have to pay the supervising judge who is in charge of the grand jury. You have to pay the prosecutors. You have to pay the guards and the agents and the people who are coming as witnesses. You’re using federal funds to pursue these people in this manner.”
It’s unclear if prosecutors plan to charge Dunn with a misdemeanor or try another grand jury.
“It depends on whether the Department of Justice decides they want to impanel a couple more grand juries for a guy who threw a sandwich at somebody,” Mattes said.
