Friday, December 5, 2014
Time to get rid of the grand jury (See ham sandwich, indictment of)* and demand governors appoint independent prosecutors to prosecute killer cops.
I despise secrecy, especially secret meetings attended by people who discuss and decide matters that affect others without their knowledge or consent. Democracy requires transparency. It cannot function when decisions are made in secret and carried out without the knowledge and consent of the governed. Similarly, our courts must be open to the public so that the people that it serves can observe and decide whether justice is being dispensed. Indeed, the Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment guarantees an accused a right to a public trial and the First Amendment protects the public’s right to know what its government and its courts are doing.
A star chamber proceeding has no place in a democratic society; yet, that is what a grand jury does. It meets in secret and decides whether to charge people with crimes. The identities of its members are kept secret as are the identities of the witnesses and their testimony before it.
Why do we have this deplorable practice?
We need to return to not so merry old England during the 11th century when the king was all powerful and able to stifle political dissent and steal valuable lands that he wanted by accusing, imprisoning, prosecuting, convicting and killing people for crimes they had not committed. To prevent him from abusing the criminal law to satisfy his lust for wealth and power, the aristocracy of the day took away his power to decide whom to charge. Hence, the grand jury was created to make that decision and the king had to convince its members that there was a legitimate reason to accuse someone of a crime.
We live in far different times and while there remains a legitimate concern that the criminal laws will be abused to punish and silence those who dissent (fill in the names of any whistleblowers here), we do have a process to review criminal charges for legitimacy. It’s called a probable cause hearing.
What is probable cause, you ask?
The Supreme Court of the United States (SCOTUS) defined probable cause in Brinegar v. United States, 338 U.S. 160 (1949) as follows:
where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.
The sole function of a grand jury today is to decide whether there is probable cause to believe that a person committed the crime charged. A prosecutor typically decides whom to charge and what crime to charge. Armed with a proposed indictment and accompanied by the police detective who ran the investigation or the officer who arrested the suspect or target of the grand jury ‘investigation,’ the prosecutor puts the detective or cop on the stand and has him or her summarize the evidence against the target. Then the grand jury votes on whether there is probable cause. Depending on the size of the grand jury, at least 9 out of 12 or 12 out of 23 ‘yes’ votes are needed to return an indictment or true bill. Otherwise, it’s a no bill.
Many states have abolished the grand jury because it’s a pain-in-the-you-know-what to deal with. Instead, a prosecutor will review a case-investigation file for probable cause, and if it’s there, file an information charging the defendant with a crime or crimes. To satisfy the probable-cause requirement they have the detective or cop who arrested the defendant sign a statement under oath setting forth the evidence in the case. The affidavit is attached to the information and submitted to a judge to review for probable cause. If the judge finds probable cause, he or she signs an order to that effect. Then the information, affidavit for probable cause and order finding probable cause are filed.
Washington State where I practiced law for 30 years uses this process instead of the cumbersome grand jury.
Florida, Missouri and New York use both procedures. In Florida, for example, Angela Corey charged George Zimmerman by information with murder 2 and Michael Dunn with murder 1 by grand jury indictment (Florida requires murder 1 prosecutions to be by grand jury indictment).
Why did the prosecutors in Missouri and New York choose the cumbersome grand jury process instead of charging by information?
The simple answer in two words is ‘political cover.’
State prosecutors, who are elected by the voters, work closely with the police. They see themselves as partners with police in fighting crime. The last thing they want to do is to prosecute a police officer for killing someone. Not only is that like prosecuting a member of your own family for murder, it’s a great way to destroy a working relationship with police officers and lose the next election. In other words, they have a conflict of interest and it’s way too easy to succumb to temptation and use the secret grand jury to avoid charging and prosecuting a police officer.
State prosecutors who work with grand juries know how to get them to do their bidding. There are all sorts of ways. For example, in the Michael Brown shooting case, prosecutor Kathy Alizadeh went so far as to gently lead Officer Darren Wilson through 4 hours of testimony without ever challenging him on anything he said and she provided the grand jury with a statute favorable to him that the SCOTUS declared unconstitutional in 1985. The only witnesses challenged were the eyewitnesses who said Michael Brown had his hands up. As I warned long ago before the grand jury began hearing witnesses, the process was rigged and the outcome never in doubt.
The same is true in the Eric Garner case, except we are not going to see the prosecutor’s fingerprints at the scene of the crime because he is not going to release any evidence, except maybe the cop’s testimony, because he is going to play I’ve got a secret.
We are seeing an epidemic of cops killing unarmed civilians. There was another one in Phoenix last night.
White, brown or black, male or female, adult or child, we the people are being terrorized by militarized cops and state prosecutors are using secret grand juries to protect the killer cops and escape the political consequences for their wrongdoing.
We need to eliminate their political cover by getting rid of the grand jury and then we need to demand governors to appoint independent prosecutors to prosecute these cases.
Failure to do so will eventually lead to the people taking the law into their own hands and that is a result we must avoid.
*Charlie Pierce at Esquire Magazine came up with this expression.