In 1985, then-Chief Judge of the New York Court of Appeals Sol Wachtler made his famous quip about grand jury indictments in an interview with the New York Daily News:
Wachtler, who became the state’s top judge earlier this month, said district attorneys now have so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.”
That line—that a prosecutor could get a grand jury to ‘indict a ham sandwich’—has had enormous play, and rightly so. First, it’s simply a great line. Second, Wachtler’s position as Chief Judge of the New York high court made his opinion meaningful. As in… some guy named Benjamin Cardozo once had that gig. Third, that Judge Wachtler subsequently fell as only a human can fall, becoming entitled to his own indictment and then getting stabbed in prison, only to rehabilitate himself and teach law school… well, humanity is many, many things, but rarely dull.
Fourth, and most critically here, the legal point has always been alarming. If prosecutors in New York so dominate grand juries—despite New York providing better defense protections than its federal counterpart (such as a target right to testify, to have defense counsel present, and to evidentiary rules prohibiting unreliable hearsay)—then would we indeed, as Wachtler thought, be better off without them? Not only in New York but also in our federal system?
Here are more of Wachtler’s 1985 thoughts, including as published in that year’s January 31 Daily News:
In a bid to make prosecutors more accountable for their actions, Chief Judge Sol Wachtler has proposed that the state scrap the grand jury system of bringing criminal indictments.
* * *
Under Wachtler’s proposal, a district attorney would present some of his evidence directly to a judge at a preliminary hearing to determine whether a suspect should have to stand trial. He said that bypassing the grand jury would save time and money, and would not erode the rights of the accused.
Abolishing the grand jury system would require a state constitutional amendment, which would have to be approved by the Legislature and by voters at a referendum.
* * *
On the grand jury issue, Wachtler said that “most of the time” prosecutors can obtain indictments simply by how they present their case to a grand jury.
“And what really bothers me is that it’s used, more often than not, as a shield for the district attorney. Most of the time when you want to get a prosecution and you want to indict, you use the grand jury and you can get the damndest kind of indictments.”
And Wachtler said prosecutors can ward off complaints by saying: “Hey, you know that’s the grand jury; it’s not me!”
“It shouldn’t be that way,” Wachtler said.
Indeed, while the grand jury might have been intended as shield for citizens and thus potential defendants, it has arguably instead become shield for the prosecutor. And it doesn’t just go in the direction Wachtler was noting—indictments. It also goes in their absence.
Say, for example, you are a district attorney in Houston, Texas, and a homeowner there shoots and kills two illegal immigrants, allegedly to protect his neighbor’s stolen property. What to do? ‘The right thing,’ I’d tell my students, and given our enormous, nebulous prosecutorial discretion to ‘do justice,’ the prosecutor indeed has a most difficult job. And I am all in on instead turning that ultimate responsibility over to a more representative group of the people. But, more cynically, if you just want cover for a decision not to prosecute? A prosecutor-dominated grand jury might be just the thing. I am not saying the wrong result occurred in the particular Texas case there referenced. I’m merely saying the grand jury provides great cover: “District Attorney Ken Magidson said he couldn’t comment on the grand jury’s secret proceedings.” Again, great cover.
And, we ought to note, the federal grand jury’s sword function is absolutely tremendous, providing nearly absolute power to investigate nearly anyone and anything. As explained by the Supreme Court in United States v. R. Enterprises, Inc., 498 U.S. 292 (1991),
[T]he grand jury can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush. A grand jury investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.
Thus, all that is required—and it may not even be a constitutional requirement—is that there be more than zero reasonable possibility that the category of materials a federal grand jury seeks will produce information relevant to the general subject of a grand jury’s investigation. With that, a federal prosecutor can issue subpoenas demanding evidence and testimony. One could hardly articulate a lower justification standard.
A decade ago, I had the privilege of working with fellow crimprof Andrew Taslitz on some projects, including better protecting private records from the grand jury. I won’t repeat here our many arguments for why grand juries don’t work as they ought. But in terms of numbers, what we found was that federal grand juries were returning ‘true bills’ or indictments in 99.9% of instances in which they were asked, the annual rate coming in as high as 99.95% of the time. As we then concluded, “The bottom line is simply that were the grand jury an effective check on prosecutorial power, nobody could be that good.”
So, like many others (including here and here), I have been fascinated to see the current federal difficulties in obtaining indictments, as in the case of the DC sandwich thrower. And now we have another, this time out of Chicago. Ray Collins and Jocelyne Robledo, along with three others, were charged in a criminal complaint with violating 18 U.S.C. § 111(a)(1) during a September 27, 2025, demonstration at an ICE facility. That provision provides for the punishment of anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal agent in the performance of official duties. In this instance, the federal government (via ATF Special Agent Alex Garcia-Ortiz) alleged that when agents attempted to establish a more secure perimeter around the federal facility, both Collins and Robledo physically resisted. And both were (lawfully) carrying concealed firearms. Here’s a news report:
“Injured the thumb”?!! But… I digress.
If the federal government were prosecuting a misdemeanor, it would move forward. But since they were pursuing a felony, the Fifth Amendment right to a grand jury indictment therefore applied, and the case was so presented. Only they could not get the required majority of grand jurors to agree there was the requisite probable cause—or, in any event, to issue a ‘true bill’ to that effect.
The rarity of the event was captured both in the court hearing (to dismiss the complaint without prejudice) and in defense attorney comments following thereafter:
[US Magistrate Judge Gabriel] Fuentes questioned [Assistant US Attorney Brian] Havey during Wednesday’s hearing about Havey’s obligations in what is considered to be a highly unusual situation at the Dirksen Federal Courthouse. Havey told Fuentes, “I don’t have any experience with this.”
That prompted Fuentes to ask when a so-called “no bill” was last returned in the Northern District of Illinois. When Havey said it had happened “within the last couple weeks,” Fuentes told him to “go back to before the last couple months.”
“It happens periodically,” Havey said.
Richard Kling, a longtime Chicago defense attorney who represents Collins, told Fuentes he was “gratified” that the grand jury “stood up for the rights of people to protest and the First Amendment.” Then, he told reporters he’s had no experience with a grand jury “no bill” in Chicago’s federal court, either.
That’s what happens when it’s a .05% sort of thing, and it will be fascinating to watch whether we get more.
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