Prosecutors, Police, and Grand Juries: How Sb 227 Falls Short

• Publication year: 2018
• Author: By Hayden Thomas

PROSECUTORS, POLICE, AND GRAND JURIES: HOW SB 227 FALLS SHORT

By Hayden Thomas^*

I. Introduction

Nearly every person in America knows the names of at least a few Black individuals killed by police in recent years. Michael Brown. Eric Garner. Sandra Bland. Freddie Gray. Just to name a few. Many also know the names of some of the officers responsible for their deaths. Darren Wilson. Daniel Pantaeleo. What we don't know is why this keeps happening or what to do about it. Is it the implicit bias of police officers? Is it an over-policing of minority communities? Is it under-policing of minority communities? Is it a lack of accountability for "bad apple" police officers? A lack of adequate training?

It is likely some combination of these factors and others. A sliver of hope emanating from this vast universe of tragedy is that some elected officials are attempting to devise real solutions to these problems. The Department of Justice issued its Ferguson Report in March of 2015, seven months after Officer Darren Wilson shot and killed Michael Brown.¹ The report uncovered a broad array of systemic practices in Ferguson, Missouri, including a revenue-based policing system perpetrated through the violation of citizens', particularly Blacks', constitutional rights. The report found that these violations spread beyond the police department and into the court system and the top brass of the local government.² These practices are not limited to Ferguson, MO, however. "Broken window" policing programs have been used in many of the 18,000 police departments around the country. While these troubling untruths have been discovered, a major complaint is how slow police departments have been to reform their practices. It took a year for Ferguson to agree to the proposed changes from the DOJ and even then, the city was only willing to comply when the Justice Department agreed that it would help ensure that the reforms didn't cripple the city's economy.³

With no clear indication that widespread reforms are likely, at least not anytime soon, one way to reduce the alarming rate at which Black men and women are being killed is to deter the behavior through prosecution. At this point, officers have practically been handed a license to kill. Inaction through various District Attorney Offices and their perverted use of the grand jury system has done nothing to disincentive police officers from shooting first and thinking second.

Just over a year ago, Governor Jerry Brown signed a bill into law that prohibits grand juries from hearing cases where an officer has used excessive or deadly force⁴ This bill seeks to prevent District Attorneys from using grand juries to shield themselves from accountability. Because the elected DA is subject to the political process, the idea goes, a DA who is independently determining not to indict will be voted out of office by constituents who disagree. While well intentioned, various problems with this approach still remain. First, the relationship between a District Attorney's office and its local police departments is such that the willingness to indict can be described as hesitant at best. Second, minority communities make up such a small percentage of the electorate (and such a large percentage of those who are policed) that their political influence in the outcome of a county wide public official is nominal. Moreover, following the recent Supreme Court decision in Shelby County,⁵ voting rights restrictions are on the rise and thus, those who are most likely to be directly impacted by police killings are unable to use their 15^th Amendment rights.

In this paper, I will discuss the use of grand juries, their history and how they have been used in cases involving deadly force by a police officer. I will also explore the bill, SB 227, what its likely effects will be, and why it will likely fall short. Finally, this paper will highlight common-sense solutions including removing the DA from the case altogether and instead appointing the state Attorney General's office to handle the case, creating a quasi-independent office to handle officer involved incidents, and increasing and changing the training that officers receive.

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II. History of GJ System

The use and purpose of grand juries can be divided into three different historical stages. The grand jury originated nearly 800 years ago, at which point it served as an arm of the English monarch; it then transitioned into a body meant to serve and protect the rights and liberties of citizens of a nation-state; and today's grand jury, a minor hurdle which a prosecutor must step over in order to receive an indictment. With the recent publicity surrounding officer-involved shootings, there appears to be a fourth way in which the grand jury process can be viewed. As we can see from two high-profile examples, when a police officer is the defendant, the prosecutor approaches the grand jury in a unique way, no longer serving as a zealous advocate for the state but rather, as SB 227 suggests, using the grand jury as political shield.

A. Origin

In 1907, legal scholar George J. Edwards referred to grand juries as, "the noblest check upon malice and oppression of individuals and the states".⁶ They could hardly be described that way originally, however. Late in the 12^th Century, King Henry II devised a mechanism for investigating various crimes. This plan required twelve men to investigate and report all suspects to the Sheriff who then seized the suspects. The grand jury subsequently indicted them. If the jurors failed to indict, they were required to pay a fine to the King. The suspects who were accused of a crime by those twelve jurors were tried by ordeal, a presumption of guilt that was rarely overcome. The King's traveling justices were even able to interrogate each of the jurors to determine how they reached their findings.⁷

Over 100 years later and a century after the signing of the Magna Carta, which introduced due process and other individual protections, the 12 jurors took on the role we now know as a petit jury, determining guilt or innocence.⁸ Their investigatory role was replaced by twenty-four knights who were chosen by the sheriff: le grande inquest.⁹ By the 14^th century, criminal common law included an indicting grand jury and an adjudicating petit jury.¹⁰ The grand jury determined probable cause; the petit jury rendered a verdict. However, our modern ideas of justice and fairness were absent given that the petit jury was generally under great threat from the king to convict.¹¹

B. Protector of Rights and Liberties

In 1681, grand juries in London refused to indict enemies of King Charles II, thereby establishing the grand jury as more than just a wing of the government but a safeguard for the rights and liberties of the wrongfully accused.¹² As colonists settled on what would become the United States of America, they originally neglected to bring with them the idea of the grand jury.¹³ Instead, the colonies used "assistants," authorized by the English monarchy who were powerful and abusive. In response to abuses of power, one of the first grand juries used in the colonies charged several of these "assistants" with crimes. The original American grand jury was used as a defense against the abuses of the British monarch.¹⁴

Early grand juries in America took on all kinds of roles, including oversight of infrastructure, the economy, taxing and spending and of course, criminal indictment.¹⁵ By the start of the American Revolution, grand juries were at the forefront of resisting the British monarchy, refusing to indict the press for making derogatory statements about the British rule and even issuing their own public statements in opposition to the King.¹⁶ However, following independence, neither the Constitution nor the Federal Judiciary Act of 1789 delineated a grand jury.¹⁷ It wasn't until 1791, when the Fifth Amendment was adopted as part of the Bill of Rights, that the promise of constitutionally protected right to a grand jury was realized. The Grand Jury Clause ensured that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury."¹⁸ As an individual right granted by the Constitution, the purpose of the Grand Jury as imagined by the founding fathers was to protect citizens against overbearing and repressive government action.¹⁹ Unfortunately, that is virtually the opposite of how today's grand jury system functions.

III. Grand Juries Today

Most people are familiar with the hyperbolic phrase that "a prosecutor could convince a grand jury to indict a ham sandwich."²⁰ However studies have shown that, at least at the federal level, it is not much of an exaggeration. Out of 160,000 cases federal prosecutors pursued in 20092010, grand juries voted not to return an indictment in only 11.²¹ There is no similar data available for state prosecutions, and the only available data for federal grand jury indictment covers just those two years. Experts agree, however, that it's quite likely that the percentage of grand jury indictments is also quite high. ²²

A. The Supreme Court

Supreme Court grand jury jurisprudence has stripped away the intent of the Founding Fathers who viewed the grand jury as a vital check on the government, creating instead a legal fiction wherein the grand jury is purported to have great independence, but in reality operates as just an extension of the prosecutor's already broad power.²³ This practice is akin to the original grand juries in England, where the monarch directed the grand jury to indict as he pleased. Today's grand jury process functions in a somewhat similar fashion. While it's easy to blame prosecutors for this problematic pattern, the United States Supreme Court is largely responsible for creating this situation.²⁴

Despite opportunities to do so, the Court has refused to hold that the grand jury hearing is a critical stage in the criminal process and thus, at that...