Are Grand Juries In The Way Of Justice?


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.

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The Permanent Jury Nullification: A Trotskyist Argument For Jury Nullification

UPDATE: An interesting case for advocates of jury nullification to keep an eye on.

In my criminal law class, one of the concepts we have studied thus far is the idea of jury nullification. For those of you not familiar, jury nullification is when the jurors ignore the instructions of the judge, the “law finder” of the court, to render a verdict of not guilty. Jury nullification has a rather complicated historical record: on the one hand, it has been used by social movement like the anti-war movement in order to prevent the incarceration of people who took direct action against the state. On the other hand, it has led to white supremacist court rulings, from the killers of Emmett Till to Colin Murphy. Jury nullification is thus very controversial, even among Leftists. It finds a considerable amount of support among both the Left and Right libertarians, who see it as a glorious example of the individual(s) overcoming state oppression in order to protect their communities. In U.S. hegemonic doctrine (or what less-antagonistic lawyers would call “case law”), jury nullification has been found to be a power inevitably granted due to the rights of the Fifth Amendment for juries to be the democratic check to state power as the court’s “fact finders” and the Sixth Amendment for protection from double jeopardy. In other words, if you give juries the power to render verdicts with only guiding instruction and those verdicts of acquittal are absolute, there is no constitutional way to outright criminalize jury nullification. But of course, a capitalist state is never held back by such pithy restraints as “following its own laws.”

In People v. Williams (25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209, 2001), an 18 year old young man had sexual intercourse with a 16 year old girlfriend. If help to the standard of consent between two adults, the girl’s assent would have been considered consent. But because of her age, Williams was charged with the misdemeanor offense of unlawful sexual intercourse with a minor. When the case reached the California Supreme Court, the following exchange between a juror and the presiding judge:

Judge: It’s been reported to me that you refuse to follow my instructions on the law in regard to…unlawful sexual intercourse, that you believe the law to be wrong and, therefore, you will not hear any discussion on that subject. Is that correct?

Juror: Pretty much, yes…

Judge: All right. Well…I would remind you…that you took an oath at the outset of the case in the following language: ‘Do you and each of you understand and agree that you will well and truly try the cause now pending before this Court and a true verdict render according only to the evidence presented to you and to the instructions of the Court.’ You understand that if you would not follow the instructions that have been given to you by the court that you would be violating that oath? Do you understand that?

Juror: I understand that.

Judge: Are you willing to abide by the requirements of your oath?

Juror: I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be a wrong reason.

Judge: Well, you understand that statutory rape or unlawful sexual intercourse has been described to you as a misdemeanor? Did you follow that in the instructions?

Juror: I’ve been told it is a misdemeanor. I still don’t see – if it were a $10 fine, I just don’t see convicting a man and staining his record for the rest of his life. I think that is wrong. I’m sorry, Judge.

Judge: What you’re saying is not the law either concerning that particular aspect. [my emphasis added]

Juror: I’m trying as best I can, Judge. And I’m willing to follow all the rules and regulations on the entire rest of the charges, but on that particular charge, I just feel duty-bound to object.

Judge: So you’re not willing then to follow your oath?

Juror: That is correct.

The juror was excused and Williams was convicted by the newly convened jury. The state’s hypocrisy in this case is palpable: when the judge says that the juror’s opinion is not the law governing the issue, the implicit assumption here is that the jury is duty-bound to be law finders. But we know this not to be the case, precisely because the state argues the opposite when it is discouraging jury nullification! In my opinion, this juror almost avoided his dismissal. It was not until the last question where the juror explicitly stated that he was not willing to follow his oath. When he was asked a similar question for the first few times, all he stated was that he could not see a situation in which he would convict Williams, and his determination as to conviction is his power through jury nullification. There are two lessons to learn from this case: first, that juries are full of people whose commitment to the capitalist state goes far enough that they will turn you in simply for resisting the state’s assignations. Second, that the state has many loopholes by which it can pressure and prod jurors into not using jury nullification or eliminating jurors determined to use jury nullification. If jury nullification is a tool that we wish to use, then we must educate people unfamiliar with the law about due process rights and their power as jurors. But even in this aspect we must be cautious: in 2011, Julian Heicklen was charged with jury tampering for his leafletting about the jury nullification power.

Trotsky did not write much on the political landscape of the United States, which is a shame because what little writing he did do on it shows that he had a very introspective analysis of it. “Certainly the phases of development of the proletarian party in America,” he writes, “will be sui generis (unique)… It is evident that the possibility of participating in and of utilizing a “Labor Party” movement would be greater in the period of its inception, that is, in the period when the part is not a party but an amorphic politic mass movement. That we must participate in it at that time and with the greatest energy is without question” (“On the Labor Party Question in America”). Most Trotskyists in the United States, and notably Socialist Alternative, take some form of this approach to electoral politics. But when Trotsky talked about participating in and utilizing such movements, he was not simply talking about this in regards to electoral politics. I would argue that this approach is just as relevant to how Trotskyists should approach the mostly liberal and libertarian (Left and Right) movement to reform or dismantle the criminal injustice system. Similar to voting, juries are one of our few means of exercising anything remotely resembling democracy. The capitalist politicians and courts have required this sense of community legitimacy in order to carry out their reign of terror on the working class, and especially with all the populations which serve as the United States’s underclass (Black people, Native peoples, gender nonconforming people, drug addicts, etc.). After all, how are we to criticize the incarceration of our family and friends as state violence when it is a jury of their peers that made the decision? But of course this is a farce: as demonstrated in the above cases, the state will use all means at its disposal to convince juries that their options are limited to carry out the state’s own agenda, that they are little more than “yes men” to mass incarceration. This is one of the greatest tragedies of the criminal injustice system: the dramatic irony of a jury that thinks they can only be servants of the capitalist agenda, but in actuality has some of the greatest power within the system to fight that agenda.

It is vital for us to educate the working class and underclass of the importance of serving on a jury. We need to train our members in how to present themselves to be more likely to pass voir dire, and subsequently to carry out a socialist agenda while on the jury, including the use of jury nullification. One juror informing the other jurors of their own power, while it can lead to being dismissed like in the case above, has often led to the most important decisions made in courtrooms (and not just in Twelve Angry Men). We do not need to go through some obligatory political stage in order to start seizing the means of producing incarceration and other state-based punitive judgments. We, any person in this country with jury privileges, can build our conception of socialist law today through actions like jury nullification.

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Chattel Slavery, Peonage, and Labor Under Capitalism

In a class I am taking that focuses on constitutional law, we have spent the first two weeks focusing on state action and consequentially the Fourteenth Amendment, from the initial limitations prescribed by the Civil Rights Cases in 1883 to the synthesis of the Edmonson-Lugar rule, which defines when private conduct constitutes state action (in the Edmonson case, this involved a private corporation being sued for personal injury damages using peremptory challenges to get ride of two Black people from the jury. Because the jury is a state function, and peremptory challenges have no use outside of the courtroom, and finally because being discriminated against by a jury after being discriminated against by the corporation would be an aggravation of the injury facilitated by the state, it constitutes state action. If you could not tell from this complicated process (and particularly the Shelley v. Kraemer factor in the rule is something that confuses even learned legal scholars), placing private action in the public sphere of deserving protection from discrimination is arduous and limited. We actually worked through a number of state action cases, including Edmonson, before we got to the Civil Rights Cases. And the professor had us do a rather illuminating exercise, where we hypothetically went back in time and could write the majority opinion ourselves based on our own interpretations. When I did this, I certainly had a more open interpretation of the 14th amendment is necessarily limited by its language:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Michael Parenti has a fascinating lecture on the real history of fascism, and one of the many assertions he makes about the misconceptions of fascism is that it was intentionally spurred by the actions and investment of global capitalists, from German captains of industry to infamously IBM, Coca-Cola, and Henry Ford. And then Parenti compares many of the tactics to those used by Ronald Reagan. But he makes sure to state that he is not asserting that Reagan was a fascist. After all, rather than pushing for a state cult like the Third Reich, Reagan appointed as many people into positions of power as he could that did not believe in the functions of government they were supervising. From the perspective of the United States entrance into World War II, it was a competition to see which form of capitalism would win: one with a state to strong-arm the working class vs. one with a state that passively allows private actors to strong-arm the working class. The 14th Amendment is a great example of this capitalist state theory, and it should be noted that the decision to weaken the 14th Amendment was made by the moderate section of abolitionists. Conversely, the radical abolitionists like Frederick Douglass, Thaddeus Stevens, and Wendell Phillips were all outraged by the limitations of these amendments. And Representative John A. Bingham, author of the amendment, would garishly reveal his political allegiances when he was implicated in the Credit Mobilier scandal.

As a Trotskyist, I believe in a transitional programme, including with the way I study (and hopefully one day practice) the law. Of course it is vital for us to be autonomous from the capitalist system in order to present a true, rather than assimilatory, alternative, but I want to learn how to use the capitalist law in ways that can build working class consciousness and movement. Needless to say, the limitations of the Fourteenth Amendment were rather disheartening. But that is only one portion of the Civil Rights Cases: they also made a case for the Thirteenth Amendment not offering protection to the legislation either. The Thirteenth Amendment, while including that unfortunate provision on carceral slavery, is far more powerful in that it does not require state action: it prohibits slavery for all parties. Unquestionably this Amendment was the greatest legal victory by the abolitionist movement. But in the Civil Rights Cases, the majority opinion makes the case that the discrimination against free Black peoples before the abolition of slavery demonstrates that anti-Black discrimination is not a “badge or incidence” of slavery. With the current historical record, and of course not viewing it through a lens of perpetuating white supremacy, we know this to be an utter falsehood, as the state-instituted forms of anti-Black discrimination dealing with public accommodations specifically arose in order to dehumanize Black people and thus make them ideal subjects for chattel slavery. And the Black Codes in particular still influence modern anti-Black discrimination today.

Seeing how completely the Civil Rights Cases Thirteenth Amendment arguments could be dismantled, I wondered why we see so little modern day uses of the Thirteenth Amendment. When I asked my professor about this, one part of her answer was to look at the peonage cases. While there are plenty of cases that exemplify the grotesque labor conditions of the South for Black workers, I am going to focus on the case of Pollock v. Williams because of the then Attorney General’s interpretation of it having major implications for the development of capitalism following the loss of the chattel slavery labor source. Florida had a state statute, making it a crime to leave a job without repaying an advance made by the employer to the worker. We continue to see this method of peonage used today in both legal (i.e. crowdworking per its initial labor investment in marketing oneself and bidding for jobs) and black market contexts (i.e. human trafficking in which the laborer is “indebted” to the person who provided them transportation to the country they work in). The Supreme Court struck down Florida’s statute, saying that the purpose of the Thirteenth Amendment went beyond the restrictive context of disallowing slavery; the Court stated that the Thirteenth Amendment was meant to “maintain a system of completely free and voluntary labor throughout the United States.” Attorney General Biddle took this opinion a step forward: as Risa L. Goluboff writes, Biddle believed the Thirteenth Amendment “meant the creation and protection of a unitary, national labor market.” Herein we see the capitalist motivation for Attorney General Biddle to go after peonage laws: like fascism on a macro-scale, peonage laws were meant to entrust the state with steering the labor market in ways that privileged corporations. Biddle foresaw that this methodology would create economic crisis as chattel slavery had done before it. His motivation was largely what David Harvey describes as capitalism’s tendency to move around, rather than solve, its economic crises. As Marxists we of course know that no matter how unitary or nationally-cohesive, capitalism will always bring itself to crisis again.

Nevertheless, the struggle against peonage laws (and it should be noted there were huge community forces behind this resistance as well) fits into a transitional programme regardless of the capitalists. As noted by Jennifer Roesch, “a discussion of the relationship between racism and capitalism has never been more relevant [than today].” Because of how pervasively anti-Black racism under-girds United States capitalism, it is necessary to prioritize targeting those racist structures even if it fails to create an alternative to capitalism in the short-term. For this reason, I think the next big 13th Amendment cases lie in going after these “crowdworking” companies. “Crowdworking” is the neoliberal globalization of the peonage system, only disguising the “advance” as a payment through labor rather than a payment through currency. It conforms with Biddle’s idea of a unitary, though international rather than national, labor market. Thus it is clearly an action to build further consciousness, rather than repeating the actions and frameworks of Biddle. Certainly it is a more complicated issue than this simple brief outline, but I sincerely hope that with the success of the Black Lives Matter movement will come a renewed interest in dismantling the racist exploitation in capitalist labor markets using the Thirteenth Amendment.

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