A Grand Idea

It is of critical importance to avoid judging situations that should be tried in a court of law according to media reports. Legally established triers of fact are best situated to assess all of the relevant information necessary to arrive at a proper outcome. And while no merely human institution enjoys infallibility, a trial governed by the rules of due process is a much more reliable method of ferreting out the truth of a situation than is arriving at conclusions based on incomplete, or possibly biased, media reports.

The least reliable way to determine the truth of a matter is by assessing it according to one’s political predilections. Thus, when we hear of yet another police shooting, the responses can be predicted with a fair measure of accuracy depending on the political leanings of those doing the responding. So-called “conservatives” will side with the police, while so-called “liberals” will take the side of those who are shot. But since few will disagree that police officers are authorized to use deadly force to protect their own lives or the lives of others, one takes a curious stance if he claims that police killings are always justified on the one hand, or never justified on the other. In our sane, that is, our non-political moments, we have to realize that every situation is different, and that some police shootings will be justified, some not justified, and others outright criminal. And we have no better method available to make the determination than our courts, however flawed the system might be.

But it is no longer sufficient to make that observation. The fact is, police killings, particularly of unarmed individuals, have resulted in a growing lack of confidence in law enforcement in the United States. It makes no difference if the situation has arisen because of media bias or political distortions. It is simply a fact that a widespread lack of confidence in our police forces has come to pass. And it is a crisis, whether or not that lack of confidence is justified. It is a crisis because it not only makes the necessary task of law enforcement more difficult, making the safety of everyone less secure, but, as we have seen through recent tragic events, it actually endangers the lives of officers, regardless of their participation in misconduct.

This lack of confidence centers on the widespread belief that officers are able to engage in unjustified or unlawful force without legal accountability. An Amnesty International report from last year puts it this way:

“Many of the nationwide protests in the wake of recent police killings have demanded accountability and international law requires it. All cases of police use of lethal force must be subject to an independent, impartial and transparent investigation and if the evidence indicates that the killing was unlawful, the police officer responsible should be criminally prosecuted. However, accountability for police use of lethal force is severely lacking in the United States. The officer’s own police agency usually conducts the investigation before handing the case over to the local prosecutor for review, who, depending on the jurisdiction, either convenes a grand jury or decides directly whether to file charges against the officer. The fact that investigations are handled internally and that prosecutors have to maintain good working relationships with the police as well as fulfill their duty to investigate and prosecute police use of lethal force, has led to calls being made for independent investigations and prosecutors. While this report only examines whether specific accountability measures are provided for in a state’s use of lethal force statute, Amnesty International has previously documented concerns with oversight mechanisms in the United States and the need for independent and effective oversight bodies to be established.” [1]

As reforms are considered, there seems to be little appreciation for the fact that there already exists the proper institutional framework for independent review within the Anglo-American legal system, though reform will be necessary before it begins to again operate as it should. It can be found in the Fifth Amendment of the U.S. Constitution, which provides that no “person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger….” [2]

The grand jury is an institution the United States inherited from the English legal practice where the sheriff of the county would, during the times when criminal courts were in session, assemble twenty-four freeholders (men only in those days) to inquire into any matters presented to them. [3] Not less than twelve, nor more than 23, of these would be empaneled to receive indictments, which would be presented to them in the name of the king, but which could be brought before them by any private prosecutor. In serious cases, they, and they alone, would determine whether there was sufficient cause for the accused to answer to the indictment.

The grand jury could also take notice of any offenses within its own knowledge and observation, without any bill of indictment laid before them. An officer of the court would then frame an indictment. This process was known as a “presentment.”  

This was the system that was incorporated into the Constitution. But as one Roger Roots has observed, the “Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse.” [4] This is due to the fact that, in modern practice, the government prosecutor has come to dominate the Grand Jury process. As Roots puts it,

“A ‘runaway’ grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today’s ‘runaway’ grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact ‘runaways,’ according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.”

But the modern grand jury has been reduced to a mere instrument of the prosecutor.

“Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department. In practice, the grand jury’s every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.”

The grand jury requirement of the Fifth Amendment applies only to the federal government, and the states are not required to have them. Today, only about half the states employ grand juries. But where they are utilized the same problem exists. [5] “Critics note that many states abolished all or part of the grand jury’s jurisdiction at the end of the nineteenth century, in large part because the process had come increasingly under the control of prosecutors.” [6] Thus a chief judge of New York’s highest court once infamously said “that grand juries were so pliable that a prosecutor could get a grand jury to ‘indict a ham sandwich.’” [7] (That the speaker himself was later himself criminally charged and convicted [8] is no reflection on the veracity of the observation.)

Most of the criticism of grand juries being under the thrall of the prosecutor focuses on the possibility of improper charges being filed. But in 2014, there were two cases involving police killings of unarmed citizens where the grand juries declined to issue indictments. These were the cases of Michael Brown, and 18-year-old black man who was shot by a white police officer in Ferguson, Missouri; and Eric Garner, a 43-year-old black man who died after a police officer placed him in a choke hold in Staten Island, New York. A grand jury also declined to indict in response to the 2014 police shooting in Cleveland, Ohio of Tamir Rice, a 12-year-old African American youth, who was found to have had an air gun replica of a firearm in his possession.

Regarding the Michael Brown and Eric Garner incidents, St. Thomas University School of Law professor, Jay Sterling Silver, wrote that the prosecutor’s involvement in the grand jury process entailed a conflict of interest. [9] As for the Tamir Rice killing, his family issued a statement after the grand jury decision.

By Bertram Kreuter
“‘Prosecutor McGinty deliberately sabotaged the case, never advocating for my son, and acting instead like the police officers’ defense attorney,’ the statement said. ‘In a time in which a nonindictment for two police officers who have killed an unarmed black child is business as usual, we mourn for Tamir, and for all of the black people who have been killed by the police without justice. In our view, this process demonstrates that race is still an extremely troubling and serious problem in our country and the criminal-justice system.’” [10]

It might be suggested that the answer is to get rid of the grand jury system since it has come to be so easily manipulated by prosecutors. But that would completely professionalize the charging process, and do nothing about potential conflicts of interest on the part of prosecutors, since the charging decision would be left to the prosecutors alone. That, obviously, would do nothing to inspire confidence in the criminal justice system, and it is the lack of confidence in same that is precisely the problem.

Instead, the answer is to restore the grand jury to what it was before it came to be dominated by prosecutors. Grand juries must again become independent investigative bodies. Such grand juries would continue to receive information from law enforcement, to be sure, but not through prosecutors. Law enforcement agencies would bring information before the grand juries, who would proceed to call witnesses and conduct hearings themselves. They would also sit to receive information from any citizen who believed he had relevant matter to present. The process of presentment would also be restored, so that grand juries could charge based on knowledge they came to on their own.

Grand juries operating in this manner would need legal consultation, of course. But instead of using prosecutors for this purpose, attorneys who were not part of the prosecutor’s office, and completely independent of law enforcement, could be provided them, not to conduct hearings or ask questions for them, but solely to provide legal advice. These attorneys would not be evaluated on whether or not an indictment was issued in any given case, but solely on the quality of the legal advice given. A system similar to this is already in place in the State of Hawaii. [11]

That a large segment of the population deems itself alienated from law enforcement processes should properly be viewed as a crisis. It does not matter whether such feelings are justified or not. When people believe themselves to be outside the protection of government, only chaos can ensue. One answer may well be to restore what is supposed to be there in the first place: grand juries that are independent of law enforcement or prosecutorial operations. If the feelings of alienation are properly based, this is an answer that can do much to alleviate the causes. If not, operating the system in the way it was intended could certainly do no harm.

Jack Quirk