The toxic aftereffects of the killing of unarmed 18 year old by a Ferguson, Missouri police officer have not only persisted but, if anything, intensified in the wake of similar disturbing cases. Taken together, they have fueled the perception that cops too often shoot young men of color in haste, and with insufficient cause. Simmering distrust of the police has led to protest, rage, and at the extreme end, violent retaliation: two New York City cops were shot to death sitting in their car. The “blue line” has reacted with anger of its own, lambasting officials and community leaders for what it perceives as insufficient support.
It’s easy to play Monday morning quarterback following a shooting by an officer. Coulda, shoulda, woulda; all these polemics can be deftly countered by the simple riposte, “You weren’t there.” Split-second decisions must be made on the street. Prior experience, individual response to stress, and yes, personal biases all play a role in whether a trigger is or isn’t pulled; it is exceedingly difficult to affix culpability.
And yet, we must.
So as 2015 commences, Congress and the courts are being asked to confront exactly how we do that. Who gets to determine whether police officers used excessive force? What is taken into account to reach that judgment? Should we lift the veil of secrecy that often shrouds such proceedings? And do we need to reform current methods that may give subtle, unfair advantages to law enforcement?
In most police shootings, the mechanism often used to determine whether an incident was justified is the grand jury. With Ferguson, the deficits of this system were laid bare. When a St. Louis County grand jury found that the evidence against officer Darren Wilson did not warrant a trial, the basic premise of the protestors—a different code of justice applies to cops—seemed substantiated. Critics were quick to note that the local prosecutor who presented the case to the grand jury, Bob McCulloch, had a reputation for being cozy with police, and that his own father was a police officer killed by a black suspect. (“Mr. McCulloch’s objectivity is tainted by his tragic past,” wrote UC Berkeley social psychologist Jack Glaser, an associate professor at the Goldman School of Public Policy, in an op-ed in the St. Louis Post Dispatch calling on Missouri’s governor to remove McCulloch from the case.)
“I found the lack of indictments striking,” says Taimur Case, a Berkeley law student and a former president of the school’s student organization, Law Students of African Descent. “In my experience, the role of prosecutors is to pursue charges. In this case (the prosecutor) almost came across as a defense attorney. He practically vilified witnesses (against Wilson).”
Just this week, one of the Ferguson grand jurors filed a lawsuit against McCulloch, seeking release from a legal prohibition against speaking about deliberations during the case. The grand juror, represented by the American Civil Liberties Union, claims in the suit that the prosecutor’s mishandled the case and made misleading public comments, such as his claim that grand jurors felt there was no validity to the evidence against Wilson. In Missouri and other states, proposed legislation would eliminate the grand jury system entirely. And U.S. Rep. Hank Thompson (D-GA) has introduced the federal Grand Jury Reform Act, which would require special prosecutors to handle cases involving police officers who have used deadly force.
Unease with the current system is rippling across the political spectrum. A new Washington Post-ABC News poll concluded that 86 percent of Americans want to require police officers to wear compact video cameras while on patrol, and 87 percent favor special prosecutors for cases involving disputes over use of police force. Conservatives share these concerns with Progressives. People describing themselves as “conservative Republicans” expressed the least support for the changes, but they still favored required video cameras by 79 percent, while 76 percent supported special prosecutors.
Grand juries, of course, are groups of citizens empaneled to determine if there is sufficient evidence to bring criminal charges against a given suspect. They are designed as an alternative to giving a local prosecutor sole say over whether to bring criminal charges. As an institution, grand juries are venerable to the point of hoariness. They’ve been around since the Court of Henry II, who employed them to ensure the dominance of the English royal courts over existing feudal courts.
But contemporary critics view them as archaic. Most of the world, apparently, feels the same way. The United States is one of the very few countries that still use grand juries; indeed, they’re not all that popular here. Most states employ preliminary hearings to determine if evidence is strong enough to take a case to trial. (California allows for either preliminary hearings or grand juries to evaluate evidence.) Major federal cases, however, invariably involve grand juries to determine sufficient grounds for indictment.
Though both grand juries and preliminary hearings aim for the same end, the procedures they use to get there are very different. A typical preliminary hearing is conducted in front of a judge in open court, and is usually convened due to the testimony of a law enforcement officer. Witnesses are subject to cross-examination, and the judge determines if the evidence is sufficient to warrant a trial.
Grand juries are very different beasts. They are drawn from the same pool of potential jurors as trial juries, and can range from 12 to 23 people. Jurors are called for specific periods of time, and may consider several cases during the period they are impaneled. All evidence that is presented is considered secret, and barred from public view. The only people present during a typical hearing are the prosecutor, the grand jurors and witnesses—no defense attorneys, and no judges. Thus, while the grand jurors can question witnesses, no independent arbiter (a judge) or advocates for the accused (defense attorneys) can raise objections or cross-examine. To a very large degree, then, the prosecutor calls the shots. The prosecutor chooses the evidence that is presented; there is no burden to present evidence that may exculpate the accused.
What’s the bottom line? The bar for indictment is very low. In 2010, for example, federal grand juries indicted in all but 11 of more than 162,300 cases. Or as Tom Wolfe famously quoted New York State Chief Judge Sol Wachtler: “A grand jury would indict a ham sandwich…”
Unless, it seems, that ham sandwich is a cop. Darren Wilson’s case is a prime example. His grand jury experience was far different than that endured by most defendants.
“In the federal model, the grand jury is the screening body, and the trial is the main event,” says Charles Weisselberg, an associate dean and professor at Berkeley Law. “The grand jury evaluates evidence to determine probable cause. It can also have an investigative function. It can subpoena witnesses, affording them immunity and forcing them to testify. Grand juries can be extremely valuable to prosecutors, because they can provide evidence that they (prosecutors) may not have the resources to develop.”
Wilson’s grand jury, however, didn’t function along established lines. First, Wilson testified at length; defendants seldom testify during grand jury proceedings. Second, McCulloch asked the jurors to find probable cause that Wilson did not act in lawful self-defense. In other words, rather than demonstrate there was sufficient evidence to bring Wilson to trial, McCulloch essentially instructed the jurors to consider an affirmative defense for Wilson: He functioned more as a defense attorney than a prosecutor.
“I don’t know enough about state procedures to comment on (how atypical this is), but for a federal case, I’d say it’d be very unusual,” says Weisselberg.
Actually, a lack of prosecutorial zeal is not particularly uncommon in state cases involving shootings by police. The Ferguson case exemplifies two common complaints about the grand jury system, says Andrea Roth, assistant professor at Berkeley Law.
“The number one concern expressed by the National Association for Criminal Lawyers is that all too often grand juries act as a rubber stamp for prosecutors,” says Roth. “There is also a widespread feeling that police officers get preferential treatment from prosecutors (in grand jury investigations).”
Weisselberg notes that the relationship between police and prosecutors “is an important one to explore. Prosecutors must have the cooperation of law enforcement officers to do their work, and it’s also true that prosecutors must examine the behavior of police and bring charges when merited. But when that happens, it puts (prosecutors) in a difficult and uncomfortable position. So you see situations like Ferguson, where the prosecuting attorney instructed the grand jury about the law, but did not ask for an indictment on specific charges.”
Roth says the Ferguson grand jury decision left the impression that the prosecution was aligned with the accused officer.
“It felt like the prosecution was biased, that they chose not to bring charges when they probably should’ve,” Roth says. “Instead of just facing the political fallout from a decision (to seek charges), they decided to treat the grand jury like a full-blown trial, and avoid making a persuasive case for guilt. They used their failure to indict as cover for their own bias.”
Further, says Roth, Ferguson shows “that good attorneys matter. (The prosecution) gave erroneous instructions to the grand jury in Wilson’s case. If there had been better prosecutors, the results would have been different (and Wilson would have gone to trial). That’s not to say Wilson would have been found guilty at trial, of course. But at some point, you have to have adversarial procedures to obtain justice.”
While possible remedies to grand jury deficiencies are percolating around, Weisselberg notes that any change to the federal grand jury system would require a constitutional amendment, and that’s unlikely. But state systems could certainly be tweaked. On the other hand, there’s no need to reinvent the wheel (or the scales of justice): We already have a good alternative to grand juries.
“My own view is that the overwhelming majority of cases would be better off with a preliminary hearing, where the evidence is presented in open court,” says Weisselberg. “In ordinary cases, the grand jury doesn’t provide a meaningful screen of the evidence, and it is hard to rationalize their use over a judge deciding matters.”
Roth thinks the idea of special prosecutors might be a good means of addressing the conflicts of interest, real or perceived, that can arise when police officers appear before grand juries.
“You could get a prosecutor from another district, someone with no connection to the local law enforcement system,” she says. “It would certainly be worth a try. I don’t advocate one track for police and another for all other defendants. But you have to look at the statistics. The numbers don’t lie. Some kind of bias is in play when it comes to the lack of indictments for police officers, especially for homicide, and it should be addressed.”
Another possibility: British-style inquests. These inquiries are carried out by juries supported by the advice of judges or coroners. Their task is to establish the facts in any disputed or out-of-the-ordinary death. Such juries do not have the power to indict or convict, but they are authorized to compel witnesses to testify under oath. The proceedings are transparent, and the findings are public record. Typically, prosecutors use inquest conclusions to determine if there is sufficient evidence to take a case to a grand jury, which would then make the decision to indict or not.
For his part, Case says he remains deeply disappointed by the way Wilson’s case played out. But not surprised.
“It looked like business as usual,” he says. “It certainly isn’t a sterling example of the system working, of justice being served. I’ve worked across the table from prosecutors, and I understand how easy it is for them to bring charges. The standard for indictment is so low that it’s shocking. A kid jumps a turnstile, and he’s charged with a crime. But if police officer shoots someone dead, suddenly there’s insufficient evidence. As a law student of color, I have to admit that this has me questioning the system I aspire to join. It’s just a reminder that we have a lot of work to do to achieve any real equity.”
Editors’ note: In January of 2016, California became the first state in the nation to ban the use of secret grand juries to determine whether police officers should face trial for use of deadly force. “One doesn’t have to be a lawyer to understand why SB 227 makes sense,” said the bill’s sponsor, Democratic state Sen. Holly Mitchell of Los Angeles. “The use of the criminal grand jury process, and the refusal to indict as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system.” The California Association of District Attorneys and some other law enforcement opponents had contended that grand juries were a useful tool in such cases.