The aftermath of two incredibly controversial grand jury decisions in Ferguson and New York has resulted in a wave of emotionally charged dissent that has spilled onto streets nationwide, leading many Americans to question how effective the arbiters of justice enshrined in the U.S. grand jury system are at delivering said justice and achieving necessary reform in cases involving members of law enforcement, who are guilty of misconduct. While the details and circumstances surrounding the grand jury decisions in Ferguson and New York may vary, elected officials and legal experts have asserted that there are certain underlying issues in the grand jury system which limit the liability and accountability of law enforcement personnel guilty of crimes ranging from murder to misconduct and thus, the grand jury system is in need of immediate reform.
The Garner grand jury decision in particular has increased pressure on elected officials to formulate some manner of reform to regulate the actions and policies of law enforcement departments as officials across the aisle have joined tens of thousands of citizens throughout the nation in voicing their nearly unanimous outrage at what the New York delegation to Congress has called a “miscarriage of justice.” In a statement made to USA Today, New York state Senate Democratic leader Andrea Stewart-Cousins accurately summed up the disbelief and outrage felt by many Americans attempting to come to terms with the Garner jury decision: “The reality of what we saw (on the video) and what the jury’s decision was is really what people are clamoring to understand better,” Stewart-Cousins said.
Stewart-Cousins was referring in her comment to the notorious cellphone video in which Staten Island resident and father of six, Eric Garner, can be seen being assailed by multiple NYPD officers, one of whom placed Garner in a prohibited choke-hold maneuver, which resulted in his death hours later. The seemingly unwarranted use of a prohibited technique on an unarmed individual is complemented by the degree of indifference that seems to be demonstrated by the officers as Garner repeatedly called out, “I can’t breathe,” while being forcibly held down on the sidewalk. The agonizing final moments of Garner’s life captured on that video have mortified a nation, while the subsequent grand jury decision not to indict NYPD officer Daniel Pantaleo in his death, has demonstrated that the grand jury system is in desperate need of reform in order to regulate law enforcement misconduct.
Sol Wachtler, who is a former State Chief Judge of New York, once remarked that a grand jury could “indict a ham sandwich.” This statement is hardly an exaggeration, considering that grand juries almost always decide to indict, unless, of course, the individual facing potential indictment happens to be a police officer or member of law enforcement. According to statistics released by the Bureau of Justice, attorneys prosecuted approximately 162,000 cases involving crimes committed by civilians in 2010 alone, of which grand juries returned indictments in a mere 11 of these cases. “If a prosecutor wants and indictment and doesn’t get it, something has gone horribly wrong,” states Andrew D. Lepold, a law professor at Illinois University.
In contrast, grand juries frequently decline to indict police officers and law enforcement personnel guilty of crimes or misconduct, such as officer-related shootings and deaths, which is precisely why comprehensive reform is necessary in such a system to better regulate and punish such instances of criminal behavior. A Houston Chronicle investigation into the number of officers indicted for shootings stated that “police have been nearly immune” from criminal charges related to shootings in Houston and larger cities throughout the nation. Grand juries in Dallas reviewed 81 cases involving police officer-related shootings between 2008 and 2012, yet only one indictment was produced, while grand juries in Houston haven’t indicted a single police officer since 2004. Experts and advocates alike have drawn upon statistics such as these to demonstrate systemic issues in the grand jury system and to advocate for meaningful reform in an attempt to more effectively regulate law enforcement actions and policies throughout the nation.
Research conducted by Bowling Green University criminologists has demonstrated that police officers are rarely arrested for committing murder or non-negligent homicide while on-duty, whereas a majority of cases involving negligent homicide occur while officers are on-duty. According to the “Killed by Cops” Facebook page, around 1,000 citizens are killed by cops every year, and statistics cited in the Bowling Green study say that approximately four police officers are indicted for these crimes each year. However, there is currently no form of official federal database to record the number of citizens killed by law enforcement officers on an annual basis.
The possible reason why so few law enforcement officers are indicted for misconduct like gun-related deaths is multifaceted, but all relevant variables are worthy of consideration in the effort to achieve necessary reform of the grand jury system in order to regulate such behavior. One such variable is the favoritism demonstrated by jurors in grand jury trials towards law enforcement as a whole, which has the ability to influence whether jurors interpret officers’ use of force to be justified, even when the evidence proves otherwise. In addition, the professional relationships between prosecutors and police departments can result in a form of “prosecutorial bias,” a type of symbiosis in which prosecutors seek to present a less that watertight case against law enforcement officers to preserve their mutually beneficial relationships.
While prosecutors rarely ever bring cases to grand juries without absolute certainty that the case will result in an indictment, they are also influenced by a large degree of public pressure in high profile cases which may compel them to present cases with little hope of success in an effort to appease public discontent. Missouri law Professor Ben Trachtenberg referred to this occurrence in a statement made about the Michael Brown grand jury case, saying, “The prosecutor in this case really didn’t have a choice whether he would bring it to a grand jury,” Trachtenburg said.
Another immediate issue with both grand juries in Ferguson and New York is that police officers were allowed to testify on their own behalf and submit their own evidence, a fact which defies U.S. judicial tradition. In the 1992 Supreme Court case, U.S. v Williams, Justice Antonio Scalia stated that the suspect under investigation by a grand jury has never been allowed to testify or introduce “exculpatory evidence” on his or her behalf. Some legal experts have advocated for identifying and analyzing what are referred to as “ordinary injustices,” which are unconstitutional court practices, such as officers testifying on their own behalf, rather than completely reforming the grand jury system to cope with law enforcement misconduct. “When nobody bothers to question these injustices, they become commonplace,” states Phil Stinson of Bowling Green University.
In response to the multitude of issues demanding reform, New York state lawmakers are expected to begin addressing grand jury reform in the coming session by increasing the transparency of the grand jury process and potentially creating a new prosecutor position to investigate law enforcement misconduct. Lawmakers will seek to emulate the actions of Wisconsin governor Scott Walker, who in April introduced flagship legislation requiring an outside investigation to be conducted whenever an individual dies in law enforcement custody. The new law mandates that at least two investigators from independent agencies outside the department must conduct reviews into such deaths and publish public reports if criminal charges are not filed.
As a nation searches for some semblance of justice following two of the most emotionally charged grand jury cases in recent memory, both citizens and elected officials have begun to look towards a future in which necessary reforms in the grand jury system designed to more effectively regulate law enforcement misconduct have become a reality. Perhaps American citizens should seek some guidance from Michael Bell, a Wisconsin man who helped lead the charge in advocating for a revolutionary piece of legislation to increase police accountability after his unarmed son was shot dead. “That was the catalyst that started everything,” Bell said.
Opinion by Charles Stephen Craun
Photo courtesy of John Marino-Flickr License
Photo courtesy of Fibonacci Blue-Flickr License