Recent grand jury decisions in Ferguson, Missouri, and Staten Island, New York, have – quite literally – wreaked havoc across the nation. Two separate grand juries decided not to indict police officers Darren Wilson and Daniel Pantaleo for the deaths of Michael Brown and Eric Garner, respectively. Both decisions led to uproars and protests on several college campuses, including the Claremont Colleges.
On Wednesday, Rep. Hank Johnson (D-GA) responded by introducing the Grand Jury Reform Act, H.R. 5830, which “prohibits the use of a secret grand jury process when determining whether a police officer should be prosecuted for wrongfully killing another person while in the line of duty.” The law would appoint special prosecutors to conduct probable cause hearings that are open to the public and require local law enforcement agencies to comply with the new process to receive federal funding.
The grand jury system isn’t perfect. In fact, there are deeply troubling concerns about its undemocratic process that, as Rep. Johnson points out, warrant a closer look. But is his reform an effective solution?
Why are grand juries problematic?
When the Framers included the grand jury indictment clause in the Fifth Amendment, they sought to provide a “check” on government by allowing ordinary citizens to curb ill-conceived indictments and prevent prosecutorial misconduct. In modern day proceedings, it has been argued that this constitutional “check” is either weak or largely absent.
According to the Cato Institute, government prosecutors now have complete control over the grand jury process: they decide what will be investigated, what charges will be included, what subpoenas will be issued, what evidence will be introduced, and what witnesses will testify and receive immunity. The defense counsel is barred and no judge is present to provide oversight. Ralph Rossum, professor of constitutional law at Claremont McKenna College (CMC), noted, “There is a famous line that ‘prosecutors can get a grand jury to indict a ham sandwich.’ To the extent that that’s the case, it represents a failure in the grand jury system because that means ordinary citizens are being manipulated by the prosecutor.”
For those of us who fear big government, giving the government the immense power to essentially pick and choose who does or does not get indicted without any oversight sounds like our worst nightmare. And this is especially problematic in cases that involve law enforcement.
On the state level, our current system expects district attorneys to prosecute the same police officers who closely work with them on cases on a daily basis. Worse, district attorneys depend on these officers politically, since police union endorsements are critical for their re-election. Rossum points out, “The use of grand juries at the state level precedes police unions and the organized support of candidates for the district attorney’s office.” Given this modern political reality, it is unsurprising that grand juries indict police offers in only around 40 percent of cases, compared to having a near 100 percent indictment rate for all federal cases.
Are preliminary hearings a better alternative?
America is one of few countries that require grand juries for federal capital crimes, but they are not required at the state level. Only about half of states choose to use them. Others opt to use preliminary hearings, which are adversarial (two sides argue before a judge) and open to the public, like normal court proceedings.
Rossum asserts that preliminary hearings are just as bad, if not worse, than grand juries. “In preliminary hearings, the defense typically chooses not to present anyway, since the burden of proof – probable cause – is so low. They expect probable cause will be found and don’t want to reveal their defense strategy, so the alternative to a grand jury doesn’t protect all that more.”
He continues, “Ethically, you get more protection from a grand jury because what stands between you and an indictment is not two government employees – the prosecutor and the judge – but one government employee [the prosecutor] and a group of ordinary citizens.” To require preliminary hearings in lieu of grand juries would do little, if anything, to mitigate potential bias towards law enforcement.
Should we appoint special prosecutors?
The Grand Jury Reform Act seeks to reduce this potential bias by appointing special prosecutors to handle all police-related cases. Another way to guard against bias is to assign police misconduct cases to prosecutors in a special division within a larger prosecutor’s office. CMC government and ethics professor Joseph Bessette recounts his experience in the early 1980s at the State’s Attorney’s office in Cook County, Illinois – the second most populous county in the country, following Los Angeles. (What Illinois calls state’s attorneys most states call district attorneys.)
“In Chicago, we had 570 attorneys in the prosecutor’s office. They were divided up in all different kinds of ways: some were assigned to juvenile courts; some only did appeals; some only did felony court,” Bessette said. “We had a special division called the Public Integrity Unit with about 10 to 20 prosecutors. All they did was public corruption or police-related cases – they weren’t the same prosecutors that worked with police officers every day. They worked in a special division so that they would have freedom and fewer conflicts of interest.”
Bessette saw this division to be beneficial for both regular prosecutors and police officers, as well as the system as a whole. “Local cops and prosecutors had a camaraderie that would have been difficult to maintain if the same prosecutors were investigating and trying cops for misbehavior. Similarly, the prosecutors who did investigate and try cops didn’t have to worry about unsettling long-standing relationships with the police.”
“So you could have good relationships at that level. You wouldn’t have the same person working closely with a cop one day, and then indicting the cop’s buddy the next day.”
Despite these benefits, Bessette remains hesitant to reform the current system to require special prosecutors for all police-related cases. “There are concerns about special prosecutors that people should have as well,” he warned.
“At the federal level, we don’t have a very good record of special prosecutors. When the Ethics in Government Act was on the books between 1978 and 1999, independent counsels often took many years just to decide not to prosecute,” he observed. “Sometimes they ignored standard Department of Justice policies and occasionally issued stinging public reports about the subjects of their investigations even though they filed no formal charges. So I’m not automatically a fan of special prosecutors, though I have never studied their use in police misconduct cases.”
Rossum echoes Bessette’s reservations. “Typically, prosecutors have more crimes than they can possibly prosecute, so, with their prosecutorial discretion, they allocate their resources in a way that seems most efficient by only pursuing cases that are likely to result in a conviction.” The same restrictions do not apply, however, to special prosecutors.
Rossum refers to the Supreme Court case Morrison v. Olson (1988), looking specifically at Justice Scalia’s dissent. In the case, independent counsel Alexis Morrison was appointed to investigate government official Ted Olson.
“When the decision was made to focus on Ted Olson, Alexis Morrison had an unlimited amount of time and budget to go after him, which means that resources weren’t going to, let’s say, six or seven other cases,” Rossum said. “It distorts the allocation of scarce resources because the special prosecutor gets to work as long and as much and at whatever cost the special prosecutor wants. That puts whoever is the subject of that kind of investigation in a situation different from every other potential defendant. With special prosecutors, you put all of the state’s resources more concentratedly against a single individual.” In this respect, special prosecutors seem less accountable and more prone to misconduct than normal government prosecutors.
What happened in Ferguson and Staten Island?
In these cases, the prosecutors in the two jurisdictions did not think that there was a crime, and they were not actively trying to get the grand jury to return a bill of indictment.
“It seems that in the Ferguson case – to the best that I can tell – the prosecutor acted in an upright fashion. He let the grand jury see everything and let them decide what happened. I don’t know why, in principle, that would be a bad thing,” Bessette said.
“If the grand jury is given unfettered access to every witness, every police report, and all of the physical evidence, and you still can’t get 9 out of 12 jurors (the rule in St. Louis County) to agree that there is probable cause that a crime was committed, then why would you think that the same evidence would convince every member of a trial jury that the defendant was guilty beyond a reasonable doubt?” he asked. “It is considered unethical for a prosecutor to take a case to trial if he or she does not believe that a conviction is likely. Otherwise, the trial process can become a way for prosecutors to harass, and perhaps impoverish, defendants.”
Rossum added, “From what we know from the evidence, to actually bring Darren Wilson to trial and bankrupt him in the process would not be justice: there is no way a trial jury would have unanimously convicted him.”
For Ferguson, the prosecutor released all of the evidence online; whereas, for Staten Island, the prosecutor was only authorized to disclose a limited amount of information.
“I found the Staten Island case much more problematic, in part because the prosecutor has not been as forthcoming with the evidence,” Rossum said. “What I found impressive about Ferguson was that the prosecutor said ‘if the grand jury acted badly, let’s release all of the evidence and let ordinary citizens decide for themselves.’”
Bessette concurs that the Staten Island case is more suspicious. “There seems to be more questions raised in the Staten Island case about whether the prosecutor proceeded properly than in the other case. One reason for that is that apparently the prosecutor gave immunity to all of the police officers, except for Daniel Pantaleo. Now, that seems a bit odd.”
Prosecutors usually grant witnesses immunity in exchange for their testimony. But in the Staten Island case, the grand jury already had direct footage of the incident. During the incident, Daniel Pantaleo put his arm around Eric Garner’s neck and four other officers restrained him by compressing his chest and forcing him to lie face down on the sidewalk. While on the ground, Garner repeated “I can’t breathe” multiple times.
“It seems odd to grant immunity here,” said Bessette. “Why not have the grand jury look at all of the evidence for all of the officers – especially if sitting on top of [Garner] when he said he couldn’t breathe might have been more of a contributor to his death than the actual takedown?”
Without the full release of evidence, it is difficult to determine whether the prosecutor acted wrongly in the Staten Island case. But from what we do know, it’s hard not to be critical.
Should we reform the system?
With preliminary hearings as a mediocre alternative, and special prosecutors carrying their own set of issues, what should we do about the current system – if anything at all?
“I certainly don’t have enough evidence right now that shows that there is something wrong with the way it works,” Bessette said. “Do we have cases of prosecutors covering up for others? Do we have cases of prosecutors ‘indicting ham sandwiches’ – or the equivalent of indicting innocent people?”
“We don’t hear much about grand juries in the news, and that’s because there isn’t much controversy on a day-to-day basis. We’re hearing all about them because of these two famous cases,” he continued. “But I need to see more evidence. I don’t have any reason to believe that we have some sort of crisis in the grand jury system, especially since it isn’t used that often at the state level for typical crimes.”
Effective reform requires prudence and careful thought about a variety of constitutional, political, and practical questions. These questions do not, by any means, come with easy answers. Without conclusive evidence, the Grand Jury Reform Act is premature, but a national dialogue has started about grand juries that could – for better or for worse – change their future course.
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