The bar for securing indictments in criminal cases is relatively low — so low that there’s a saying that prosecutors could indict a ham sandwich. But prosecutors in the nation’s capital have failed a shocking three times to get grand jurors’ approval for a felony case to move forward in an alleged assault against a federal agent.
As the Trump administration seeks a show of force in Democratic-led cities (and not in Republican-led cities with higher crime rates), the rare serial rebuke is a reminder of the limits of government power on matters of crime and punishment.
The rejection came in the case of Sidney Reid, who prosecutors in Washington alleged last month had “forcefully pushed” an FBI agent’s hand against a cement wall and “caused lacerations” on the agent’s hand during an immigration enforcement protest.
The initial complaint filed against her, which didn’t require grand jury approval, charged the same crime that D.C. prosecutors have alleged against the famous sandwich thrower, Sean Charles Dunn, which raises the prospect that his case might not make it past the grand jury stage, either.
Last week, a federal magistrate judge held a preliminary hearing and found probable cause that Reid violated the assault law, 18 U.S.C. Section 111(a)(1). The judge gave the government until Monday afternoon to secure an indictment.
Monday afternoon came and the government filed not an indictment but a notice to the court. It said not only that “an Indictment has not been returned in this case” but, incredibly, that “a third grand jury returned a no true bill.” A true bill is when the grand jury votes to indict.
This is not normal.
Indeed, it’s unusual for a grand jury not to indict any case, though it happens. Twice is rarer still. Three times is a sign that things are fully off the rails.
It’s worth noting that this is only a preliminary phase of the case, and if it moves forward to trial, prosecutors must prove it to the people of D.C. beyond a reasonable doubt to secure a conviction. There’s a general line of thinking that, however embarrassing it is for a grand jury to return a no true bill, in those rare times that happens, grand jurors have done prosecutors a favor of sorts by keeping a potentially shaky case from a trial jury. Still, three times might be a sign that the message should’ve been received at least the second time. But the U.S. Attorney’s Office led by former Fox News host Jeanine Pirro isn’t giving up. Not completely. Though prosecutors are apparently no longer trying to make it a felony case, they filed what’s called an “information” that charges Reid with a misdemeanor assault. That lets them move the case — a hobbled version of it, anyway — forward without grand jury approval. Yet this might be only a temporary reprieve for the government (if you could call it that, and I’m not sure you can). Reid’s lawyers with the federal public defender’s office said they’re “anxious to present the misdemeanor case to a jury and to quickly clear Ms. Reid’s name.” In a potent reminder for this case and others, they said Pirro “can try to concoct crimes to quiet the people, but in our criminal justice system, the citizens have the last word.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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