Photo by Tim Pierce.
I want to start with a few hard, fundamental truths. Tamir Rice was a child, and not the first Black child to be murdered in the way he was. It is a systemic part of the United States policing and criminal justice systems. Also, prosecutors are not tasked with creating justice, whatever ostensible rules of conduct might say otherwise. They are tasked with representing the interests of the state. When the executive branch of that state is systemically wired to kill Black children, justice for those Black children will never be an objective of prosecutors. This post will be about the third piece of this puzzle: grand juries.
First, I will provide a little background on what grand juries actually do and why, a subject even a number of lawyers fundamentally misunderstand. I will analyze the recent California legislation that prohibits grand jury inquiries into any incident involving a shooting by a police officer. Then I will conclude with an argument against going after grand juries, and instead how expanding and strengthening grand juries is the most feasible way to circumvent the exceptionalism afforded to the police and others by prosecutors.
A grand jury is summoned to decide whether criminal charges should be brought against a person being investigated by the state. How exactly grand juries function depends on whether it is a federal or state criminal charge: because the Fifth Amendment has only been selectively incorporated (see Adamson v. California, 332 U.S. 46 (1947)) into the Fourteenth Amendment’s Due Process Clause, there is no right to a grand jury for state criminal charges. However, all states have some form of grand jury system, but only twenty-two of those states require a grand jury.
I am going to use Ohio as an example, not only because it is the grand jury system in question but because it has many important elements for consideration. Ohio has denied the government the power to abolish the grand jury, but whether a grand jury is necessary for a particular proceeding is up to the discretion of the presiding judge (Baldwin’s Oh. Prac. Crim. L. § 39:3 (3d ed.)). The grand jury is essentially an arm of the court of common pleas, and the judge has the standard powers afforded to judges for trial juries such as dismissing individual jurors, placing a juror in contempt, etc. (id. § 39:10 (3d ed.)). However, the only party allowed to present evidence to the grand jury is the prosecutor (id. § 39:11 (3d ed.)). Even the Ohio Supreme Court has state that this power creates abuses:
In federal and state jurisdictions the grand jury serves as a shield against official tyranny, malicious prosecution, and ill-advised, expensive trials. However, a potential for abuse still exists within the grand jury system. Examples of abuse are: selective prosecution, vindictive prosecution, the use of perjured testimony, excessive use of hearsay, and prosecutorial appeal to the passions of the jurors.
These abuses stem from the degree of control a prosecutor wields in grand jury deliberations. –State v. Grewell, 45 Ohio St.3d 4 (1989) [internal citations removed].
Despite the purported role of grand juries as “a shield against official tyranny,” most experts recognize that the nonadversarial nature of the proceeding makes them simply a tool of law enforcement and prosecutors to investigate and charge respectively (Baldwin’s Oh. Prac. Crim. L. § 39:2 (3d ed.)). In Ohio, 5,565 individuals were indicted for drug offenses in 2014. While I was not able to find an official number, it appears that 10 police officers were indicted in 2014, 6 for manslaughter in an excessive force case, one for illicit sexual contact with a minor, and one for office theft (please feel free to correct me if these numbers are wrong). Several officers were not indicted by grand jury investigations, including in the shooting of John Crawford III at a Wal-Mart. The grand jury is not governed by any technical rules of evidence, and do not even have to be there for every witness testimony or other evidence introduced (Turk v. State, 7 Ohio 240, PT. II (1836)). But the accused do retain privileges against self-incrimination by questioning during the grand jury, though evidence can be introduced of self-incrimination earlier, such as by police officers (State v. Baker, 137 Ohio App.3d 628 (2000), cf. State v. Mackey 2005 WL 1415419 (2005)). A grand jury’s ruling can be challenged, but only when it is an indictment (Baldwin’s Oh. Prac. Crim. L. § 40:10 (3d ed.)).
So now that we have a basic understanding of grand juries, but keeping in mind that they vary from state-to-state, let’s look at the new California legislation. The new bill prohibits the use of grand juries, and vests the power solely in prosecutors. The thinking behind this is that, because prosecutors are elected in California, the change will make indictments accountable to the public. However, this thought is logically flawed for a simple reason: the power is already mostly in the hands of prosecutors. If anything, prosecutors are far more likely to be sympathetic to police officers than a grand jury: they depend on those officers for every criminal conviction, from the arrest to testimony at trial. Whether they are elected or not is immaterial: it is not a policy preference, it is an intrinsic part of their work. While not all prosecutors are popular among police, all prosecutors walk a fine line and most certainly cannot be objective in how they carry out indictments of police officers. The California law’s likely effect is to simply change the arena, and I doubt that in 2016 we will see significant differences in police being indicted or convicted.
And this is why the recent call by some activists to abolish grand juries in these situations concern me. It makes me fear that the mainstream media and prosecutors have succeeded in the most common tactic of white supremacy: convincing us that individual racists, rather than a racist system, is the problem. That “peers” are responsible rather than prosecutors. And this is not to deny the evil side of jury nullfication, and that there are situations in which the individual racism significantly contributes or is even the main source of the problem. But that level of contribution is rarely the deciding factor. Regardless of our feelings about individual racists (and I have plenty as someone from a Southern small town), individual racism is not what prevents grand juries from indictments against police officers.
I also worry that prohibition of grand juries for police killings could be a slippery slope: after all, the decision for whether a grand jury will be called is usually up to the judge, and if the judge sees that one cannot be called for police officers, depending on their politics they may see this as ample reason to restrict the privilege from others. And while the current grand jury system is in no way “a shield against official tyranny,” any removal takes away opportunities for indictments to not happen as frequently, which is certainly a goal for any of us who recognize how punitively inane and racist our criminal justice system is.
What if instead of abolishing the grand jury system we made the burdens of carrying it out as due process heavier? The very same rules of evidence that can be subverted to not bring an indictment against a police officer can be subverted to bring an indictment against a young Black person for smoking marijuana. Making the proceeding more adversarial could pressure prosecutors into carrying out more substantive investigations of police officers. And making grand juries mandatory for a criminal indictment could actually help to prevent all the police misconduct that does not even get to the level of a grand jury.
However, the process itself, the way that prosecutors have transformed it over the years, should bring us to a broader conclusion: that much more change is needed to actually start holding the government and individual police officers accountable for the violence they commit. One of my favorite things to cite to those who have faith in the criminal law is how many criminal laws prior to Model Penal Code had explicit statements that their purpose was to identify and segregate a class of undesirable individuals. While such transparency no longer exists in the mission statements of these laws, almost all of the laws have retained most of their substance (vagrancy became loitering and disorderly conduct, sodomy became criminal sexual act or crime against nature, etc.). Perhaps it is time to seek measures of accountability outside of a capitalist state built at the very foundations to avoid that accountability.