In the wake of a rash of highly publicized incidents where police action resulted in the death of individuals who were either not a threat, or already subdued; we are seeing equally highly publicized grand jury hearings determining whether to indict the police involved.  To the outrage of many, both inside and out of the local communities, more often than not, these grand juries returned “no true bill” meaning they refused to indict the officers for any wrongdoing.

How is this possible? We all have seen the videos, and in the court of public opinion, they are quite obviously guilty.  How can there be no trial?  We hear all the time “a prosecutor can get a grand jury to indict a ham sandwich” so obviously it must be the prosecutor’s fault, right?

If only it were that easy.  Let us look at what grand juries are first.  Grand juries are made up of a group of normal citizens, much like a regular jury.  Unlike a regular jury, a grand jury meets in secret, without a judge, and in many cases, the defendant is not present.  Grand juries are not there for anything like a trial, they are there to listen to incriminating evidence against the defendant to determine if there is probable cause for prosecution.  The prosecutor is in charge of the hearing, showing only one side of the case, trying to get an indictment.  The whole process is geared toward getting a defendant on trial, and in a typical grand jury scenario, only incriminating evidence is presented.  So why do so many grand juries not indict police?

The answer can be found by looking at the role of the prosecutor.  Normally a prosecutor is trying to get an indictment of a defendant brought to them by the police.  There is an inherent conflict when that defendant is the police.  , they work closely with the police force.  After all, how else are they going to handle investigations, and get defendants to indict?  If a prosecutor is perceived as going too aggressively after an indictment of a police officer that could poison the relationship and make the prosecutor’s life very difficult.  That is why in cases like Ferguson the prosecutor showed all of the evidence not merely the incriminating evidence (as would typically be the case in a grand jury hearing).  They can claim impartiality, while their inherent bias (in many cases likely a subconscious bias) makes it easier for the grand jury to return no true bill.

As long as there is this inherent conflict of interest in the system, we cannot expect a grand jury to indict the police as easily as the proverbial ham sandwich.

Thankfully, all of the publicity from these incidents has begun a movement to reform the system.  Currently, there are at least three proposals at the state and national level on how to handle the special task of indicting police officers more effectively.  The mere fact that it is recognized as a special task shows progress.

The Chief Judge of the State of New York, Jonathan Lippman in his State of the Judiciary speech proposed that in cases of homicide or felony assault involving police-civilian encounters a judge would preside over the grand jury hearing.  This would still have the prosecutor involved in the hearing, but the judge would be able to ask questions of the witnesses, and make rulings.  This helps to guard against the inherent biases of the prosecutor. The judge would then have the option to release the record of the grand jury deliberations in the event of a return of no true bill.  Right now grand jury records are sealed to protect the party who was not indicted.

In California, State Senator Holly Mitchell (D-Los Angeles) has proposed legislation, which would prohibit the use of grand juries in officer-involved shootings resulting in death of the suspect.  The elimination of grand juries in this legislation is to combat the secrecy of the process.  Presumably, as a result, these cases would result in a direct indictment and go directly to trial.

On a national level, there has also been a response to these events.  Rep. Hank Johnson, D-GA proposed legislation in December, which would keep much of the current grand jury structure in place.  However, in an effort to combat the inherent bias of the current system Rep Johnson has proposed that a special prosecutor be in charge of the grand jury in cases involving police officer misconduct.

These proposals are each a potential step in the right direction.  I hope that we can build sufficient momentum to fix the system.  I do not pretend to know the best means to do so, but it is clear change is necessary.  As surely, as we need to make sure that the criminal justice system is not the primary means of mental health care in the country. (This will be the topic of an upcoming post.)