By George E. Curry
In Tom Wolfe’s best-selling The Bonfire of the Vanities, New York State Chief Judge Sol Wachtler famously said “a grand jury would indict a ham sandwich, if that’s what you wanted.”
Given the recent failure of grand juries to indict Darren Wilson, a White police officer in Ferguson, Mo., for killing Michael Brown, an unarmed 18-year-old African American, and a similar course followed by a New York City grand jury in connection with the choke-hold death of Eric Gardner in Staten Island, the criminal injustice system has essentially said Black lives are worth less than the value of a ham sandwich.
At issue is a grand jury system in the United States that even Arnold Burns, deputy attorney general in the Reagan administration, called a “foolish anachronism.”
Essentially, it is a one-sided proceeding controlled by prosecutors that delivers indictments 99 percent of the time – unless an unarmed Black person is killed by a White police officer, as was the case in Ferguson and New York City.
Unlike a trial, grand jury proceedings are secret. Attorneys for the victims are not allowed to attend. Witnesses are not cross-examined to gauge their veracity. Even evidence that might cast doubt on a person’s innocence is not required to be placed before the grand jury.
The United States is one of the few nations that still use the grand jury system, which is rooted in British colonial law. But Britain discontinued the use of grand juries more than 80 years ago. Traditionally, the grand jury system has been used by the federal government and some states in capital murder cases or major felonies.
In addition to protection against self-incrimination, the Fifth Amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger…”
For prosecutors, the grand jury serves as a rubber stamp.
According to the Legal Times, “Justice Department statistics recently obtained by Legal Times, which reveal that 99.9 percent of the defendants called before federal grand juries are indicted, buttress the belief – and concern – that prosecutors today almost always get what they want from a system originally set up to protect citizens from governmental overreaching.”
It also found, “From fiscal years 1994 through 1998, federal prosecutors secured 122,879 indictments, according to DOJ records. During the same period, prosecutors failed to get indictments in only 83 cases.”
The U.S. Supreme Court has ruled though a grand jury is the sole charging instrument for the federal government in serious cases, defined as imprisonment of more than a year, that requirement does not apply to states. In Hurado v. California, a case decided in 1884, the court ruled that states are not constitutionally obliged to use a grand jury to charge a person in a crime.
Consequently, only 19 states require that all felonies be prosecuted through grand jury indictments, 23 reserve it for capital offenses and 30 make it optional, according to a study by Gerald D. Robin, a professor emeritus at the University of New Haven in Connecticut.
Just as Britain did, it is time to abolish the grand jury system. At the state level, we have demonstrated that’s not the only way to initiate criminal charges. This should be an ideal issue around which liberals concerned about civil liberties and conservatives concerned about an overreaching federal government should be able to coalesce around. The procedure is fundamentally flawed.
Short of total abolishment, there should be major changes made to the way grand juries operate.
In 1997, California Gov. Pete Wilson, a conservative, signed into law a bill requiring prosecutors to inform grand juries of any evidence that could be considered exculpatory or likely to prove the innocence of the accused. Several states have allowed a witness’ lawyer to accompany a client into grand jury proceedings and provide counsel before a witness answers a question.
Reforming the grand jury system will have a greater influence on developing a fair criminal justice system than requiring police officers to wear body cameras. Because if those serving as grand jurors refuse to believe their eyes, as they did in the case of Eric Gardner, all the body cameras in the world won’t help.
And the problem may be worse than we think.
The Wall Street Journal reported last week that hundreds of police killings went unreported from 2007 and 2012.. It said, “A Wall Street Journal analysis of the latest data from 105 of the country’s largest police agencies found more than 550 police killings during those years were missing from the national tally or, in a few dozen cases, not attributed to the agency involved. As a result: It is nearly impossible to determine how many people are killed by the police each year.”
Reforming the grand jury system will make it easier to prosecute cops who kill unarmed people who pose no threat to their safety.
George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service (NNPA.) He is a keynote speaker, moderator, and media coach. Curry can be reached through his Web site, www.georgecurry.com. You can also follow him at www.twitter.com/currygeorge and George E. Curry Fan Page on Facebook