No More Grand Juries

[dropcap]In case people[/dropcap] didn’t get it earlier, it’s time to recognize that the ancient institution of the grand jury has outlived its usefulness, and should be eliminated, as its only real purpose today is to give prosecutors political cover and an added cudgel with which to intimidate witnesses.

Originally established back 1215 as part of the Magna Carta in England, the intent was to put some constraint on the ability of the king to prosecute opponents. In modern times, its use has been reduced, and in fact, throughout the world in countries where the justice system is based upon British Common Law, it has been eliminated — with the notable exception of the United States.

The first instance of a grand jury can be traced back to the Assize of Clarendon, an 1166 act of Henry II of England.^[5] In fact, Henry’s chief effect on the development of the English monarchy was to increase the jurisdiction of the royal courts at the expense of the feudal courts. Itinerant justices on regular circuits were sent out once each year to enforce the “King’s Peace”. To make this system of royal criminal justice more effective, Henry employed the method of inquest used by William the Conqueror in the Domesday Book. In each shire, a body of important men was sworn (juré) to report to the sheriff all crimes committed since the last session of the circuit court. Thus originated the modern grand jury that presents information for an indictment.^[6] The grand jury was later recognized by King John in Magna Carta in 1215 on demand of the nobility.^[7]

A grand jury is so named because traditionally it has a greater number of jurors than a trial jury, also known as a petty jury or petit jury(from the French word meaning “small”).[4]
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We should be asking why the US, where justice and the rule of law have been so exceptionally corrupted, perverted and and subverted in recent decades, with the virtual elimination of trial by jury in criminal cases, the undermining of habeas corpus, and the ubiquity of excessive bail, not to mention wide-spread racism in all phases of the legal process, from arrest and arraignment to jury selection and sentencing, is the US the lone major country still holding on to grand juries. (Hint: It can’t be for anything good.)

What we have seen in Ferguson, MO in the case of the grand jury “investigation” there of white Ferguson Police Office Darren Willson and his killing of the unarmed black teenager Michael Brown, and in New York City, and in the case of the grand jury “investigation” of NY Police Officer Daniel Pantaleo and his killing, by illegal choke hold, of Eric Garner, the unarmed black father of six, are two examples of a grand jury being used to provide the state, and specifically two elected district attorneys, with an excuse and political cover not to prosecute criminal police officers.

In Ferguson, an unarmed youth who was simply walking down the middle of a largely empty street, was gunned down by a police officer while he was on the ground pleading for mercy. In New York, a 43-year-old man, trying to support his family by selling cigarettes on the sidewalk was piled on by four police officers, one of whom, while the victim was being held on prone on the sidewalk, his face ground into the concrete, choked him to death with an arm hold that had long been specifically banned by the NYPD because of the number of deaths it had caused.

The prosecutor in the first case, Robert McCulloch, hails from a family of police officers — his father and brothers were all cops, and his father had reportedly been slain during a call by a black man with a sniper rifle. On that basis alone, he should have stepped aside in this particular case because of an unseemly appearance of and potential for bias. But it gets worse. After the grand jury reached its controversial “decision” not to indict Wilson for any violation at all in the slaying of Brown, it was reported that Democrat McCulloch, in addition to being St. Louis County’s top prosecutor, is also president of an organization called The Backstoppers, Inc., a charity that raises money to support cops in Missouri and Illinois, and to compound the felony, that organization had been selling T-shirts emblazoned with the phrase: “I support Officer Wilson.”

In New York, where there are five boroughs and five elected prosecutors, the district attorney who presided over the grand jury that declined to find any violation in Officer Panteleo’s killing of Garner, is Dan Donovan, a politically ambitious Republican in the city’s one Republican-majority borough. To win a GOP nomination to any higher office in the state, Donovan needs to establish his “tough on crime” reputation, which in the Republican Party tends to be a codeword for “tough on minorities.”  It also means being an unquestioning backer of police.  As Jeffrey Fagan, a Columbia University law professor specializing in police accountability and criminal law, explained the importance of this grand jury in a local publication called The Gothamist:

“It’s politically costly for Dan Donovan to indict a police officer on Staten Island. He can easily shift the political and legal burden to the Department of Justice to decide whether to pursue criminal charges. He’s washed his hands of it.”

Of course, grand juries are most often used to indict criminals who aren’t police officers, but in that case, they actually are completely superfluous. While at the federal level, grand juries are required for any felony indictment, at the state or county level, prosecutors have the full authority to present charges against suspects for crimes without going through the process of a grand jury hearing. In fact, the whole idea of a grand jury investigation in a criminal case at the state level is a huge waste of time and money, particularly for those citizens who are impaneled and have to sit through the process of hearing witnesses.

As jurist Sol Wachtler, a former chief judge of the New York State Court of Appeals, once famously said of the institution of the grand jury that “any prosecutor who wanted to could get a grand jury to indict a ham sandwich.”  His point was that prosecutors control all the information that the lay people on the grand jury hear about a case in question, and also provide the legal information those citizen jurors need in terms of what different charges, for example first or second-degree murder, manslaughter, or involuntary manslaughter, entail. (In the Ferguson case, we know from grand jury transcripts that McColloch misinformed jurors about the law, inaccurately informing them that in Missouri, it’s legal for police to shoot and kill “fleeing felons.” It is not legal to do so, and the DA surely knew that. We don’t know what Staten Island DA told his grand jury, because the transcript, as with most grand juries, is sealed.)

While both grand jurors and petit jurors have the right to reach their own conclusions in a case, regardless of the evidence and of any instructions from, respectively, a prosecutor or a judge, it is rare enough to see petit jurors reach a decision different from what they are instructed by a judge and rarer still to see a grand jury ignore the recommendations of a prosecutor.

So if grand juries are abused for the purpose of giving political cover to district attorneys, and aren’t needed to bring charges against criminals, why do we have them? Well, it turns out that prosecutors love them for another reason. They get to bring in witnesses and suspected accomplices of criminal suspects and then compel them to testify about what they know — before any trial even takes place.

Witnesses at a grand jury hearing (which is always closed to the public, unlike a courtroom), are required to answer all questions put to them, unless they plead protection under the Fifth Amendment against self-incrimination. That’s a powerful investigative tool for a local prosecutor, and one district attorneys would be loath to give up. After all, the FBI has the advantage, in investigating a crime, that it is a federal felony to lie to an FBI agent, even when not placed under oath, but it is not a crime to lie to a state or local police officer or detective. It’s also a tool that can be overused or improperly used in politically-motivated prosecutions, since simply leaking word that someone in a grand jury hearing “took the Fifth” can destroy a career, even though there can actually be many non-criminal reasons for doing so — for example exposing a marital infidelity, or perhaps a hidden but embarrassing sexual proclivity.

All in all, we’d all be much better off, and our civil liberties, human rights, and the rule of law would be better protected if grand juries in the US were scrapped as they have been in most of the rest of the English-speaking world.

For starters, corrupted, biased and politically ambitious prosecutors like McCollom and Donovan would have to stand on their own two feet and take full responsibility for any controversial decision not to prosecute police officers who clearly, as demonstrated by video evidence, used excessive force and killed unarmed citizens not guilty of any crime.

The mounting toll of such extrajudicial murders by increasingly militarized and brutal US police of innocent, unarmed people, now running in excess of 1400 per year, demands that we have prosecutors willing to hold police to account, and that, when they don’t, the public knows who to hold responsible for that inaction.

Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).