America’s grand jury system is outdated, racist, and unjust—and it’s time to fix it

Ferguson and Eric Garner showed we have a problem when it comes to police killings.

Mar 1, 2020, 9:51 am*

Internet Culture

Chris Osterndorf 

Chris Osterndorf

They say if it ain’t broke, don’t fix it. Too bad that doesn’t apply to America’s grand jury system.

In an effort to combat this, New York’s top judge, Jonathan Lippman, proposed a bold new change to the judiciary system on Tuesday that would allow for judges to oversee grand jury decisions in cases where police are responsible for civilian killings, rather than placing all the power in the hands of the district attorneys. This measure of course comes in the wake of the Eric Garner shooting in Lippman’s home state and the death of Michael Brown in Ferguson, Mo. According to Lippman, who is the chief judge in New York’s Court of Appeals, the current grand jury system is “a relic of another time.” Although Lippman claims it is “not [his] role to defend or decry a particular grand jury decision, the system as a whole must be considered fair.”

Judge Lippman also advocated for abolishing what he called “the veil of secrecy,” which prohibits judges from releasing details regarding grand jury decisions in cases where no indictment is made under penalty of state law. As of now, only the state’s district attorneys are allowed to release grand jury information to the public. 

This, too, has been the matter of contention lately; following the Eric Garner decision, Daniel Donovan, the Richmond County district attorney, requested a state court release only the evidence that was reviewed by the grand jury and the witnesses who testified. Meanwhile, the actual transcripts of witness testimony, as well as Garner’s autopsy report and the specific charges Donovan levied against police officer Daniel Pantaleo (i.e., Garner’s shooter) have yet to see the light of day. Interestingly, St. Louis County prosecutor Robert McCulloch did release testimony and witness statements following the grand jury decision in Ferguson not to indict Officer Darren Wilson in the death of Michael Brown, almost immediately after the verdict was passed.

As this illustrates, the current process in grand jury cases is incredibly complicated and incredibly messy. For instance, while Missouri law allowed McCulloch, as a prosecutor, to release a bevy of information on the Michael Brown decision, his role in the proceedings remains controversial: His father, a police officer, was killed by a black man, and McCulloch still has strong ties to law enforcement today. In contrast, while Donovan didn’t necessarily have any personal connections to the Garner proceedings, his decision as a district attorney not to release the autopsy report looked particularly bad as a New York City medical examiner had already ruled Garner’s death a homicide.

If Lippman is correct, increasing the judges’ presence in these types of cases could cut down on the mass of confusion that usually accompanies them. Right now, judges mostly oversee such grand jury proceedings simply by providing basic instructions to the jurors. However, Lippman wants to make it so that, when police shootings are involved, judges are required to be “physically present in the grand jury room” so that they can make rulings, question witnesses, get rid of inadmissible evidence, and provide instructions before deliberation.

Lippman is not wrong that grand juries could use more guidance in these cases. However, the problem with his proposition lies not in the grand juries’ relationship with the judge but with the grand juries’ entire presence in police shooting cases.

One possible way to combat this issue would be to appoint special prosecutors. The New York Times held a roundtable on this very topic following the outrage that erupted in the wake of the decision not to indict Pantaleo. According to Paul Butler, a former prosecutor and a professor at Georgetown University Law Center, the problem is that the district attorneys and the prosecutor’s office have close relationships with the police, making it harder for them to be impartial in matters relating to police violence. As Butler writes:

One reason I became a prosecutor is that I had a number of bad experiences with the police where they racially profiled or just generally disrespected me. I thought I could go in as an undercover brother and change the system from the inside. What happened instead is that the system changed me.

When you work with cops every day you definitely gain more respect for their difficult work. And you need them to help you make your cases (every prosecutor has experienced having a police officer catch an attitude, sometimes in the middle of a trial, and purposely ruin your case because they don’t like you).

This would, in theory, help to combat ties such as the ones between McCulloch and the law enforcement community. However, Delores Jones-Brown, a former New Jersey prosecutor and a professor at the John Jay College of Criminal Justice who also participated in the Times’ roundtable, wasn’t convinced. For Jones-Brown, special prosecutors are a step in the right direction, as evidenced by the efforts of a Wisconsin man named Michael Bell, whose son was shot and killed by the police in 2004. Bell helped to enact one of the first laws advocating for independent investigation in police shooting cases after the officer who killed his son remained a police officer, despite his history of “making questionable decisions about when to use force.”

But as Jones-Brown points out, “the law only requires that the independent investigators turn over their report to the local prosecutor, who then decides whether or not to move forward.” More importantly, she reminds us that “to assume that special prosecutors will be independent is a mistake.” Jones-Brown continues, “While they may not routinely rely on the police agency where the accused officer works, as do local district attorneys, they might still carry an us-versus-them mindset.” So while special prosecutors may be a starting point, there’s ultimately no way to guarantee that they won’t bring their own personal biases into the equation any more than there is for prosecutors like Robert McCulloch.

If one assumes then that special prosecutors are only part of the equation in getting grand juries to make the right decision in police shootings, the question becomes: What is the rest of that equation? The Washington Post’s Sandhya Somashekhar, for one, points to body cameras and dashcams for officers and increased sensitivity training in police departments, as well as changes to city budgets that will help black communities as other steps in a multipronged approach to eliminate cases like Garner’s and Brown’s. 

More key than any of these, though, is her suggestion that these cases merit the implementation of civilian review boards. “Particularly in Missouri, groups have asked for these bodies, which are basically citizen panels that do their own investigations and oversight of police-involved shootings,” writes Somashekhar. “Communities around the country have these, with varying degrees of power. The groups in Missouri are asking for a powerful one that has the ability to subpoena witnesses.”

And yet, if the final say still ends up in the hands of a grand jury, even with the accompaniment of civilian review boards, then how can we really ensure that the injustices which have been done to Eric Garner, Michael Brown, and countless other black men before them are put to rest? The solution may seem radical, despite the fact that it is also entirely evident: Eliminate the grand jury system entirely.

Though it has not been widely reported on, there is actually a current proposal in California which would do just that. Put forth by California State Sen. Holly Mitchell (D), the legislation would bar the use of grand juries in any case involving the police shooting civilians. As Mitchell sees it, grand jury secrecy was designed to safeguard the accused, but the effect has instead prevented people from knowing all the facts in cases where police officers used excessive force. 

“Community mistrust in the justice system arises when the public’s right to know is abridged,” Mitchell asserted. “Too often eye witnesses and video evidence substantiating charges of wrongdoing on the part of law enforcement are not revealed or probed in context, resulting in seemingly inexplicable dismissal of cases by the Grand Jury.” Titled SB 227, Mitchell’s proposal is likely to be heard by California Senate committees in the next few weeks.

Of course, SB 227 isn’t likely to go anywhere. Lippman’s own proposal to increase the involvement of judges in grand jury decisions has already been met with enough pushback that the idea of eliminating grand juries entirely from police shooting cases is simply too extreme a measure to stand a chance at being enacted. “Judges already have a duty and responsibility to review all aspects of grand jury investigations, including instructions for deliberations given by prosecutors,” said Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, criticizing Judge Lippman’s proposal as unnecessary. “The rule of law should apply evenly and fairly to all without exception. There should not be a separate system of justice for police officers.”

Obviously, Mr. Lynch would surely see taking grand juries out of police shooting cases as creating a “separate system.” The problem is, though, that the police already operate under a separate system, and it’s time that we recognize that. Like Trevor Burrus, a research fellow at the Cato Institute’s Center for Constitutional Studies, said in the Times’ roundtable, “As public servants, police officers should be held to a higher standard.” Moreover, since we literally put our lives in their hands, it would seem that police officers should actually be held to the highest standard—making law enforcement’s continued mistreatment of the black community a stain on their whole profession.  

But alas, it doesn’t look like that’s going to happen, which is why we need judges to be more involved in police shooting cases. We also need special prosecutors and civilian review boards to be more involved in police shooting cases. And if all those measures still don’t adequately reform grand juries, then we need to eliminate grand juries in police shooting cases altogether. That doesn’t mean we’ll actually accomplish any of this either, at least not anytime soon. The American justice system has become so complacent that it remains broken out of laziness as much as anything else. However, if we want to fix any of the many cracks in this broken system, then we need keep fighting for these changes no matter what.

Sadly, the most troubling aspect of all here is that there are no legal measures which can be taken to make while people feel empathy toward black people, be that in the courtroom or anywhere else. Cliched as it sounds, we have to fix ourselves before we fix the law. Because until then, black lives still won’t matter to grand juries. 

Photo via matthewfreedman/Flickr (CC BY 2.0)

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*First Published: Feb 19, 2015, 12:30 pm