Police officers who killed Michael Brown in Ferguson, Mo., and Eric Garner in New York City saw their cases handled by grand juries. In both instances, they ultimately faced no charges.
State Rep. Brandon Ellington doesn’t believe justice was served in either case. He points the finger at the grand jury process itself. He wants to abolish it in Missouri by asking voters to strike grand juries from the state’s constitution.
To critics, grand juries are part of a secretive process too easily controlled by prosecutors. Often, they argue, prosecutors turn to grand juries as a way to insulate themselves against responsibility in dicey cases — especially those involving police officers they rely on to pursue criminal cases.
“Missourians should have the chance to consider whether the antiquated grand jury process still serves a legitimate purpose in our modern criminal justice system,” said Ellington, a Kansas City Democrat and chairman of the Legislative Black Caucus.
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Supporters reject the notion that prosecutors control grand juries’ decisions. Though widely misunderstood by the general public, they say, grand juries are guaranteed for federal crimes in the Fifth Amendment of the U.S. Constitution for a reason.
“Our nation’s founders thought the grand jury was so important that they enshrined it in the Bill of Rights,” said Platte County Prosecutor Eric Zahnd. “It is one of the bedrocks of the criminal justice system that we shouldn’t tamper with.”
Ellington’s efforts face incredibly long odds in the Republican-dominated General Assembly. But the legislation lays bare a growing frustration with the justice system in Missouri following the shooting death of 18-year-old Michael Brown by a Ferguson police officer last August. It also demonstrates that the issues exposed by the shooting continue to ripple through the state’s politics.
Grand juries in Missouri are appointed by judges and consist of 12 people. They are presented with evidence and asked to decide whether someone should be charged with a crime. They vote to either indict the accused or not. If they don’t indict, the case is effectively over.
Grand jury proceedings are usually swift, with several cases presented in a day. In more complicated cases, the grand jury takes on the appearance of a formal trial except that only the prosecutor presents evidence or questions witnesses.
The process is also secret. It’s a crime for a juror to disclose anything about proceedings or evidence. A member of the grand jury who voted not to indict Darren Wilson for the shooting death of Michael Brown in Ferguson recently filed a lawsuit asking a judge to allow him to speak publicly about the case.
Grand juries originated in England as a way to provide protection against overzealous prosecution. They made their way to British colonies around the globe, including the United States, Australia and Canada.
In the last century, however, grand juries began being abolished. The U.S. is the only former British colony that still uses them.
In Missouri, whether a case is presented to a grand jury is up to a prosecutor, who has the discretion to instead go before a judge and present evidence in a far less secretive preliminary hearing.
The reasons behind going to a grand jury vary, Zahnd said. For crimes involving sexual abuse of a child, for example, the grand jury process protects victims from having to testify multiple times in court in front of their alleged abuser.
“One of the things we’re trying to do in these cases is not to re-victimize a child,” he said.
But critics of grand juries say their outcome is too easily manipulated by prosecutors. Prosecutors control what witnesses appear and in what order. And there is no cross-examination. Getting an indictment from a grand jury is generally thought to be easy, said Thomas Nolan, associate professor of criminology at Merrimack College in Massachusetts.
“The mosaic can be painted in any way the prosecutor sees fit,” Nolan said. “If a prosecutor actually wants to secure an indictment, they will secure an indictment.”
Former New York Chief Judge Sol Wachtler famously remarked that a prosecutor could get a grand jury to “indict a ham sandwich.” That perception helped fuel anger at St. Louis County Prosecutor Bob McCulloch after the grand jury declined to indict the Ferguson officer who shot Michael Brown.
“A prosecutor can go before the public and say they presented the evidence to a neutral body who decided there wasn’t enough to proceed,” Nolan said. “It passes the buck in a way.”
Jackson County Prosecutor Jean Peters Baker dismisses the idea that grand juries are manipulated by prosecutors.
“I’ve had grand jurors give an indictment to me and I’ve had them not give me an indictment,” she said. “And I’ve certainly been surprised by their decisions.”
If it seems that grand juries typically vote to indict, Zahnd said, it’s because ordinarily prosecutors only bring a case if they think there is evidence warranting an indictment.
“I’m not going to take a case to a grand jury in situations where I don’t believe a crime was committed,” he said.
The exception to that rule, Baker said, is police shootings. In those cases, she said, prosecutors generally turn to grand juries “to allow 12 impartial citizens from the community to decide whether or not to charge the officer and what those charges ought to be.”
Short of doing away with grand juries, lawmakers could mandate that special prosecutors be appointed in cases involving police. Republican state Rep. Jay Barnes of Jefferson City is supporting legislation that would give the state attorney general’s office the responsibility of determining whether charges should be filed against law enforcement officers who fatally shoot people.
“There’s an inevitable appearance of bias in a case where a prosecutor has to decide whether to take action against an officer who works for an agency that prosecutor works hand-in-hand with every single day,” Barnes told the Associated Press.
Baker believes that would be a mistake.
“I am accountable to the public,” she said. “If they don’t like how I’m handling cases, they can remedy that quickly with their ballot. A special prosecutor is not accountable in that way.”