Seriously folks, it is time we moved into the 20th Century never mind the 21st. The grand jury has been around since before our nation was founded having its roots in England going back to 12th Century England. It’s original function to protect the people from the king has changed over the years to where it now acts as no more than a rubber stamp for a prosecutor.
We are stuck with it. 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.” At that long ago time it still had the important function of protecting the average Joe or Jill from the powers of the state. Now it protects the public officials from the people.
We’ve just seen two cases, one involving Michael Brown from Ferguson, Missouri, and the other Eric Garner from Staten Island, New York, where each man died as a result of police action. Grand juries investigated those killings and decided not to issue an indictment against the police officers. That, of course, was expected since few if any police officers are charged by grand juries for killing people. I’ve written about this before.
The Brown and Garner proceedings before the grand jury were secret although we eventually learned what evidence was presented by the prosecutor. The evidence was presented in the manner the prosecutor decided and the relationship between the prosecutor and the grand jury had a great bearing on the grand jury’s decision.
If there’s anyone alive who has not heard the expression that a prosecutor can indict a ham sandwich he must have been in a Rip Van Winkle like coma since he reached the age of reason and just snapped out of it. What that means, as I’m sure you know, is that if a prosecutor wants to get an indictment a grand jury will give it to him; if he doesn’t want an indictment the grand jury will refuse to indict. He does this through his close relationship with the grand jury and also through the way he presents the evidence. The grand jury is about as independent from the prosecutor as an unweaned baby is from his mother.
You understand that in a grand jury only the prosecutor puts in evidence or addresses that body. It is not an adversary system where the other side has a chance to present its evidence. The only one who asks the questions is the prosecutor. The prosecutor also controls the stenographic record, if any is made, of the hearing sometimes with hand signals and other times just going off the record.
The proceedings before a grand jury are supposed to be secret. But you also know that the prosecutor can sometimes “leak” transcripts of what occurred to his favorite friendly media person. If anyone complains about the leak, the prosecutor will then set about to investigate what he did which means nothing will come of the complaint.
Right now the grand jury has the power to subpoena witnesses but that power could also be given to prosecutors. In effect, in almost every case the prosecutor could just as easily sit at his desk and make the necessary decision based on the evidence and skip the grand jury which for all practicable purposes he is doing right now. Yes, now we are involved in a big pretend that the grand jury is an independent body when in fact the prosecutor runs it and uses it to shirk responsibility for his own decisions.
But here is a dirty little secret I perhaps shouldn’t let you in on. The grand jury is not an arm of the prosecutor but of the court. Nor must it act in secret if it chooses not to do so. The original grand jury was set up to be a bulwalk between the king and the people; it now should it be between the government and the people. It can again perform this role if we want it to be what it is supposed to be.
The court should take back control of the grand jury. It should appoint persons independent of a prosecutor to present the evidence. It should require that the matters before a grand jury be open if the matter is the investigation of a crime in which there is no need for secrecy; it can close hearings where a matter is part of an ongoing investigation that must not be disclosed. Doing this, the confidence of the public in the criminal justice system will increase when they see the presentation of the evidence and many will come to understand the system is not being rigged.
This is a simple step that could be done almost overnight. It is long past time for us to start changing the way the criminal justice system operates. What was all right in the 19th Century isn’t all right now.