Abolish grand juries and independently prosecute by information the cops who kill

Friday, December 5, 2014

Good afternoon:

Time to get rid of the grand jury (See ham sandwich, indictment of)* and demand governors appoint independent prosecutors to prosecute killer cops.

I despise secrecy, especially secret meetings attended by people who discuss and decide matters that affect others without their knowledge or consent. Democracy requires transparency. It cannot function when decisions are made in secret and carried out without the knowledge and consent of the governed. Similarly, our courts must be open to the public so that the people that it serves can observe and decide whether justice is being dispensed. Indeed, the Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment guarantees an accused a right to a public trial and the First Amendment protects the public’s right to know what its government and its courts are doing.

A star chamber proceeding has no place in a democratic society; yet, that is what a grand jury does. It meets in secret and decides whether to charge people with crimes. The identities of its members are kept secret as are the identities of the witnesses and their testimony before it.

Why do we have this deplorable practice?

We need to return to not so merry old England during the 11th century when the king was all powerful and able to stifle political dissent and steal valuable lands that he wanted by accusing, imprisoning, prosecuting, convicting and killing people for crimes they had not committed. To prevent him from abusing the criminal law to satisfy his lust for wealth and power, the aristocracy of the day took away his power to decide whom to charge. Hence, the grand jury was created to make that decision and the king had to convince its members that there was a legitimate reason to accuse someone of a crime.

We live in far different times and while there remains a legitimate concern that the criminal laws will be abused to punish and silence those who dissent (fill in the names of any whistleblowers here), we do have a process to review criminal charges for legitimacy. It’s called a probable cause hearing.

What is probable cause, you ask?

The Supreme Court of the United States (SCOTUS) defined probable cause in Brinegar v. United States, 338 U.S. 160 (1949) as follows:

where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

The sole function of a grand jury today is to decide whether there is probable cause to believe that a person committed the crime charged. A prosecutor typically decides whom to charge and what crime to charge. Armed with a proposed indictment and accompanied by the police detective who ran the investigation or the officer who arrested the suspect or target of the grand jury ‘investigation,’ the prosecutor puts the detective or cop on the stand and has him or her summarize the evidence against the target. Then the grand jury votes on whether there is probable cause. Depending on the size of the grand jury, at least 9 out of 12 or 12 out of 23 ‘yes’ votes are needed to return an indictment or true bill. Otherwise, it’s a no bill.

Many states have abolished the grand jury because it’s a pain-in-the-you-know-what to deal with. Instead, a prosecutor will review a case-investigation file for probable cause, and if it’s there, file an information charging the defendant with a crime or crimes. To satisfy the probable-cause requirement they have the detective or cop who arrested the defendant sign a statement under oath setting forth the evidence in the case. The affidavit is attached to the information and submitted to a judge to review for probable cause. If the judge finds probable cause, he or she signs an order to that effect. Then the information, affidavit for probable cause and order finding probable cause are filed.

Washington State where I practiced law for 30 years uses this process instead of the cumbersome grand jury.

Florida, Missouri and New York use both procedures. In Florida, for example, Angela Corey charged George Zimmerman by information with murder 2 and Michael Dunn with murder 1 by grand jury indictment (Florida requires murder 1 prosecutions to be by grand jury indictment).

Why did the prosecutors in Missouri and New York choose the cumbersome grand jury process instead of charging by information?

The simple answer in two words is ‘political cover.’

State prosecutors, who are elected by the voters, work closely with the police. They see themselves as partners with police in fighting crime. The last thing they want to do is to prosecute a police officer for killing someone. Not only is that like prosecuting a member of your own family for murder, it’s a great way to destroy a working relationship with police officers and lose the next election. In other words, they have a conflict of interest and it’s way too easy to succumb to temptation and use the secret grand jury to avoid charging and prosecuting a police officer.

State prosecutors who work with grand juries know how to get them to do their bidding. There are all sorts of ways. For example, in the Michael Brown shooting case, prosecutor Kathy Alizadeh went so far as to gently lead Officer Darren Wilson through 4 hours of testimony without ever challenging him on anything he said and she provided the grand jury with a statute favorable to him that the SCOTUS declared unconstitutional in 1985. The only witnesses challenged were the eyewitnesses who said Michael Brown had his hands up. As I warned long ago before the grand jury began hearing witnesses, the process was rigged and the outcome never in doubt.

The same is true in the Eric Garner case, except we are not going to see the prosecutor’s fingerprints at the scene of the crime because he is not going to release any evidence, except maybe the cop’s testimony, because he is going to play I’ve got a secret.

We are seeing an epidemic of cops killing unarmed civilians. There was another one in Phoenix last night.

White, brown or black, male or female, adult or child, we the people are being terrorized by militarized cops and state prosecutors are using secret grand juries to protect the killer cops and escape the political consequences for their wrongdoing.

We need to eliminate their political cover by getting rid of the grand jury and then we need to demand governors to appoint independent prosecutors to prosecute these cases.

Failure to do so will eventually lead to the people taking the law into their own hands and that is a result we must avoid.

*Charlie Pierce at Esquire Magazine came up with this expression.

14 Responses to Abolish grand juries and independently prosecute by information the cops who kill

  1. Malisha says:

    The corrupt former Brooklyn DA, Charles Hynes, probably WOULD indict a ham sandwich, for being “unkosher.” (joke) (in-joke) (but really, he was utterly corrupt and he wouldn’t prosecute for crimes against those he believed were or could be made into his supporters.)

    The combination of our culture and the 11th Amendment (left-over from the habits of monarchy) make it almost impossible to reign in a corrupt prosecutor. In EITHER direction. Those who target, charge and convict the innocent and those who give a carte blanche to the guilty. Disgusting, unworkable, irremediable situation.

  2. Nef05 says:

    I am not in the least surprised to read this former St. Louis cop’s op-ed reaffirms most of the opinions expressed here over the last few days. While it’s not really anything we didn’t already know, it’s interesting to read it from the perspective of an officer who was seeing it from the inside.


  3. Malisha says:

    This is why I tell co-activists not to waste their time and energy asking for new laws. EVERY LAW can be perverted so long as the government is filled with elected and non-elected perverts.

  4. Eric says:

    As a layperson and political spectator, I first became intimately familiar with the concept of the “grand jury” during the Ken Starr investigation of Clinton’s sex life in the late 90s. At the time, I remember having either lots of problems with the GJ, how Ken Starr was running it, or both. It became very clear to me how easy it was for it to be used as a very abusive tool for prosecutors. It can not only be abusive to the targets, but also the witnesses. Other than for political air cover and obfuscation in favor of prosecutors, I fail to see its purpose any longer.

    • The only useful purpose that it arguably had was to protect witness identities while building cases against mobsters who would have killed them if they knew they were cooperating with the feds.

      During the Vietnam war the feds used it to extort testimony out of people in the antiwar community under penalty of being jailed for contempt if they did not cooperate. For some people that meant lying to make the government’s case or go to jail and sit out the grand jury term, which is 18 months. Even that was no guarantee that the harassment would end because the government might summon a new grand jury with a new 18-month term to continue the investigation.

  5. I, too, think the grand jury is obsolete.

    • Malisha says:

      If it filled the function it was supposed to fill — that of restraining runaway prosecutors from using the power of their office to railroad people for no reason on green earth — I would argue that abolishing it was the ruin of our democracy. But since it operates as the opposite of its original purpose, and now has taken on the task of creating a class of non-prosecutable criminals with unbridled power, it is clear that it should not be permitted to continue to operate.

      Remember, however, that it is the BIG LIE that will be believed. The function of the grand jury in protecting police thugs is being presented as the opposite of what it is, and that will continue.

      History will be written by the victors and right now, the victors are those with the big guns.

  6. Malisha says:

    I don’t think we’re at war with the police; they have declared war on US and we are trying to figure out how to defend ourselves. Meanwhile they have stepped up the campaign of terror to convince us that one way we will not be permitted to defend ourselves is by arming ourselves; another way we will not be permitted to defend ourselves is by escape. The idea has to be absorbed by “the populace” that once you are targeted by the police, THERE IS NO DEFENSE AND THERE IS NO ESCAPE. That is the lesson that is being taught this decade.

  7. Two sides to a story says:


    By the way, LAPD shot a guy about an hour ago at Hollywood and Highland. They claim he was alive but bystanders report he was shot in the head and “head destroyed.” Victim possibly carrying a knife and possibly involved in an assault. Hollywood Blvd is a busy tourist district and this shooting happened in front of scores of people, including children. #NotOneMore Oh, they also let him lay there untouched for at least two minutes before he was transported to hospital. And there was a police brutality protest at that very intersection last night.

  8. mgs710 says:

    Couldn’t agree with you more.

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