Tamir Rice, Sandra Bland, Eric Garner and Mike Brown are but a few high-profile cases in which grand juries have declined to indict officers responsible for killing unarmed Black citizens.
One question that I have received from non-lawyers is “why” grand juries are typically reticent to indict? The simple answer remains the very nature of the grand jury process itself; how its proceedings are conducted, and the ability for prosecutors across the country to “punt” the football (in colloquial terms) by presenting the evidence to the grand jury.
But the real truth of the matter is that in the American system of jurisprudence prosecutors control what evidence is presented before the grand jury. Neither defense attorneys nor civil attorneys are allowed to attend the closed proceedings, influence what evidence is to be presented or directly examine or cross-examine witnesses. Further, grand jury proceedings are conducted in absolute secrecy and transcripts of the testimony are not provided in discovery. As such, mistrust with respect to this system is well warranted.
Like many aspects of American jurisprudence, the modern grand jury is derived from Anglican law. Prior to the 13th Century, throughout England, each shire or county within the realm maintained a group of 12 men who served as a group of informants who advised about individuals who allegedly had committed acts of larceny, robbery or murder. The 12 advisers would surreptitiously provide names of the accused to the local sheriff in hopes that by shrouding the same in secrecy, that it would prevent the accused from fleeing. At this time, those so accused were tried by “ordeal,” which was some physical labor, act of nature or duel much like what fans of the HBO series Game of Thrones observe as the Westeros form of “justice.” Under this former system, if the accused survived, they were freed; if they died, they were posthumously deemed guilty.
In 1215, when King John was forced to sign the Magna Carta or “Great Charter” at Runnymede, the concept of due process was first formed and by the 14th Century, the concept of the 12 men had been replaced by 24 knights chosen by each local sheriff who were known in each shire as le Grande inquest, which is the progenitor of our modern grand jury. The old group of 12 men then became known as “petit” or small juries, thus creating a dual system that exists in some form to this day in America where the grand jury determines whether probable cause exists to indict for a crime(s) and the petit jury determines whether the government has proved said crime(s) beyond a reasonable doubt.
While the original 1787 Constitution did not incorporate the concept of a grand jury within its tenets, the Fifth Amendment that was ratified in 1791 included a Grand Jury Clause that within the Federal system, insures that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .”
Like the old Anglican grand jury, the Fifth Amendment made secrecy an important component for the purported purposes of ensuring that no act of reprisals could be taken against those so serving, as well as hoping to prevent outside governmental influence on the charging decisions against private citizens. While a noble aim and certainly understandable during a time in which mob rule and monetary influence were more difficult to control, in the modern sense, one must ask whether the grand jury system should be just as public as our current petit jury system is in most states?
The names of petit jurors are easily obtained through open record laws and at the conclusion of each criminal trial, judges instruct jurors that they may choose to speak about their decision with anyone that they so choose—including the media—or choose to remain silent if they wish. Indeed, in most high-profile cases dating back to the O.J. Simpson trial in the mid-90’s, an anxious public knows that within hours or days of a decision, some petit juror or jurors will take to the airwaves to bear their souls while providing insight into what went down during deliberations.
But grand jurors still are prevented from such disclosures and where alleged police misconduct is concerned, such proves problematic. In that, one could conclude that as prosecutors and police officers work together each day in the arrest and prosecution of crimes, that the repeated lack of indictments of police officers leaves the impression that prosecutors are not pushing very hard to cross the probable cause threshold against their police colleagues. I do not mean to suggest that all officer involved shootings or uses of force are criminal, however, with the proliferation of smart phone cameras showing officers being brutal against citizens—and the lack of prosecutions even when captured on tape—such is a problem that needs to be addressed with all due celerity.
About The Author: Charles E. “Chuck” Hobbs II, J.D. is a trial lawyer and political columnist based in Tallahassee, Fla. He was nominated by the Tallahassee Democrat for a Pulitzer Prize in Commentary in 2011 and won the Florida Bar Media Award in 2010. He is a regular contributor to The Hill and the Tallahassee Democrat. Hobbs is a graduate of Morehouse College, Florida A&M University and the University of Florida College of Law. Follow him on Twitter.