Rarities

On October 20, 2014, Laquan McDonald, 17, was shot 16 times by Chicago police officer Jason Van Dyke. The officer had 18 civilian complaints in his record. McDonald, police said, had been slashing tires. Nine of the shots hit him at a downward angle, indicating he was on the ground. Freelance journalist Brandon Smith made15 FOIA attempts to see the dashcam video of the shooting. Chicago police refused to release it. Smith went to court August 5, 2015, and on November 19 a judge ordered the video released. The city released the six-minute dashcam, which shows McDonald walking away from the police cruiser when Van Dyke got out of it and immediately opened fire. Van Dyke was arrested without bail and charged with first degree murder the following day. (Time sequence from Medill News Service.)

On April 4, 2015, Walter Scott, 50, was killed by North Charleston, South Carolina police officer Michael Slager. Scott was running away after being stopped for a broken taillight. Slager claimed Scott had taken his stun gun and that he felt himself in mortal danger, but a cellphone video by a passserby showed Slager shooting Scott in the back (he fired eight rounds at the running man), handcuffing the motionless Scott, going back toward to his car, getting an object—probably the Taser—and planting it near the body. Slager was charged with murder.

Six police officers have been charged in death of Freddie Gray, 25, in Baltimore. Arrested April 12, Gray died of spinal injuries during the ride. One officer was charged with second-degree murder, the others with manslaughter by vehicle, involuntary manslaughter, and/or assault in the second degree, misconduct in office, and false imprisonment. There has already been one mistrial in the case.

White cops who kill black suspects are rarely indicted for anything. I don’t know what percentage of those killings are wholly justified and what percentage are not. Congress has made accurate gun death information very difficult to get. (The NRA pays well.)

Would Van Dyke have been indicted had not Brandon Smith made those 15 FOIA requests and finally getting a court order forcing the Chicago Police to release the dashcam? Would Michael Slager’s story about shooting only because he was in fear for his life have prevailed had it not been for that passerby with his cellphone video?

Usuals

Sometimes even a video won’t take it anywhere. There was an unambiguous video of New York police officer Daniel Pantaleo applying an illegal chokehold to Eric Garner on July 17, 2014. Garner’s ostensible offense was selling loose cigarettes. He kept saying, “I can’t breathe.” Pantaleo did not let go of his throat and killed Garner. Pantaleo was not indicted.

Tamir Rice, 12, was shot by Cleveland rookie officer Timothy Loehmann on Nov. 22, 2014. There had been a 911 call reporting a man with a gun in a park. The gun was a pellet gun, though the police couldn’t have known that. But if they thought the man in the park had a real gun, why did they pull up about seven feet from him and open fire two seconds later, while the police cruiser was still moving? What if they had stopped 75 feet away and used their car speaker to say, “Put the weapon on the ground and put your hands up?” If the grand jury was asked to evaluate the shooting on the basis of the moment the shot were fired, they might reasonably have concluded that the bullets were fired in perceived self-defense. If the time-frame were pushed back one-minute so they could consider if the danger existed only because of police incompetence, they very well might have reached a different conclusion. You can’t claim self-defense if you provoked the dangers from which you’re protecting yourself.

According to the New York Times, “The [911] caller added that the gun was ‘probably fake,’ and that the person waving it was ‘probably a juvenile.’ But those caveats were not relayed to Officer Loehmann or his partner, Frank Garmback, who was diving the patrol car. Officer Loehmann, who is white, opened fire within seconds of arriving at the park. Officer Garmback was also spared any charges.” (The Times article includes a surveillance camera video of the shooting.) 

What was that Cuyahoga grand jury told? We’ll never know. Grand jurors are prohibited by law from talking about what transpires in that room. Neither Garmback, a training officer, nor Loehmann, a rookie with problems in a previous police job, was indicted. “In announcing the decision,” wrote Timothy Williams and Mitch Smith in the Times on December 28, 2015, “Timothy J. McGinty, the Cuyahoga County prosecutor, said he had recommended that the grand jurors not bring charges in the killing of the boy, Tamir Rice, who was playing with the gun outside a recreation center in November 2014.”

It goes on. There was no indictment for police officer Darren Wilson, who killed Michael Brown in Ferguson, Missouri in August, 2014. Nor in the death of Dontre Hamilton, shot 14 times, in Milwaukee, April 30, 2014. Nor in the death of John Crawford, 22, shot to death August 5, 2014, in a Wal-Mart in Beavercreek, Ohio, while holding a toy BB gun.

Cops, DAs, and Grand Juries

Prosecutors go to grand juries in potential felony cases because (in some states) they have to, or (in other states) because they want to.

With rare exceptions, grand juries are prosecutors’ instruments, just as musicians in an orchestra are a conductor’s instruments. Occasionally a grand jury doesn’t do what the prosecutor wants it to do, in which case it is called a “runaway grand jury.” That is, one that has gone off the designed path. They are very rare.

Some grand juries investigate, but most just hear evidence prepared entirely by the prosecutors. That evidence is often accompanied by a recommendation from the prosecutor. That is why Sol Wachtler, then chief judge of the New York Court of Appeals, said in 1984 that a prosecutor could get a grand jury “to indict a ham sandwich.” The following year, the New York Times said Wachtler believed grand juries “operate more often as the prosecutors pawn than the citizen’s shield.” (Ironically, Wachtler was indicted in 1988 on extortion, racketeering, and blackmail charges; he pled guilty to harassing and did 15 months in federal prisons.)

The other side, any other side, has no voice in a grand jury room. A grand jury hearing is not a trial. It is simply a group of citizens that listens to evidence, or things that look like evidence presented by a prosecutor, and on the basis of the information presented by the prosecutor they decide whether the case before it should or should not proceed to trial. Their decision has nothing to do with right or wrong, with guilt or innocence. It is only about whether or not the grand jury thinks there is enough evidence to go to trial.

In most states, prosecutors don’t need a grand jury: They can go to a judge and ask for an indictment directly. Prosecutors may use grand juries as a device to develop evidence in a case or, as in many of the police killings, as a way to avoid heat for not bringing a case to trial: “Don’t blame me. I brought it to the grand jury and they didn’t indict. My hands were tied.”

Prosecutors do not like bringing cops to trial. They are dependent on the police for all their felony work. Most of the time (think Law and Order) they work in close collaboration. The last thing a prosecutor wants is a rep for being hard on cops.

Some prosecutors with higher political ambition become risk-averse: They go to trial only with cases that seem like sure things. A grand jury no-bill gets them insulation in a case they don’t want to risk at trial. Erie County, New York’s former DA, Frank Sedita III, recently anointed judge of the state Supreme Court (neither party fielded a candidate against him in the primaries; he’d have won if no one had voted for him other than himself) had such a reputation. (For more on that, see “When Prosecutors Go Bad,” The Public, 8 September 2015.)

It’s not just prosecutors: J. Edgar Hoover frequently bragged that the FBI had the highest conviction rate of any law enforcement agency in the country, something well over 90 percent. It was true. The reason was, Hoover never brought anything to federal prosecutors he didn’t think was a sure thing. For years, he refused to let his agents investigate organized crime, some say because he thought the Mob had so much money they might corrupt his agents. Others say it was really because the Mob had so much money it could afford very good lawyers.

The fact that a grand jury did not indict tells us nothing other than that the grand jury did not indict. To know more, we’d have to know what was and what wasn’t presented to the grand jury by the prosecutor. But that information, by law, is secret, unless, after the case is closed, the prosecutor chooses to release some or all of it.

Although the grand jury goes back to 1166, it comes into our legal system via Article 61 of the Magna Carta in 1215, 800 years ago last June 15. Great Britain abandoned it 50 years ago. The US and Liberia are the only two countries that still have them. The name “grand” refers to the number of participants, not the job: Trial juries are six or 12 individuals; grand juries are 16 to 24.

According to Findlaw, all states have laws allowing grand juries. Connecticut, Pennsylvania, and the District of Columbia use them only for investigations. Twenty-three states require them for serious crimes: “Alabama, Alaska, Delaware, Florida, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Caroline, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia and West Virginia. In the other 25 states, a grand jury is optional. In those states, charges may be brought by a document called an information.”

The important difference in a grand jury hearing and an information process is, there is almost always a preliminary hearing before a judge when a prosecutor presents an information. The prosecutor has to demonstrate reasonable cause. Both sides get to argue. With the grand jury, the prosecutor doesn’t have to prove reasonable cause; he just has to convince the lay jury that he has it; and the defendant is not represented.

After the case is closed, a prosecutor may release grand jury evidence if the prosecutor thinks it contains things the public ought to know or hopes the documents will take heat off the grand jury’s action or lack of action, which St. Louis County Prosecuting Attorney Robert McCulloch did in the shooting of Michael Brown by Darren Wilson.

On rare occasions, possible defendants appear before a grand jury. Since subpoenaed testimony before a grand jury cannot be used against the witness at trial, nor any information derived from it, prosecutors rarely call potential defendants into the grand jury room. They may waive immunity, in which case their testimony can be used.

Both policemen in the Tamir Rice case testified before the grand jury. But no one cross-examined them. I doubt that their attorneys would have allowed them to testify had not the prosecutor let them know he was going to recommend that the jury not return an indictment. Judge Sol Wachtler’s line about prosecutors being able to get a grand jury to indict a ham sandwich has a flip side: A prosecutor can get a grand jury to do absolutely nothing. The testimony of the two police officers in the grand jury hearing in the Tamir Rice case appears to be part of their vindication more than anything else.

What to do

If the present system puts a cloud over police killings because of the intimate relationship between prosecutor’s offices and police departments, what is to be done?

A number of people have suggested that such cases are drowning in conflict of interest from the beginning, that the only time that conflict fades into the background is when there is overwhelming documentation in the public arena giving the prosecutor no choice but to act, as in the Laquan McDonald and Walter Scott killings. Even when prosecutors are acting perfectly responsibly and the grand jury is right in not indicting, there is nonetheless often a cloud over the entire affair.

It is said that Julius Caesar divorced his wife Pompea because she was suspected of wrongdoing: “Caesar’s wife must be above suspicion.”

So must our prosecutors, who have enormous power. We must be able to trust them in all things, or we can trust them in nothing.

Many critics of the current system advocate appointment of an independent prosecutor in cases like this, someone who does not have a day-to-day relationship with the organization that employs the potential defendant and who is not dependent on that organization for success in his or her job, someone who has no political interest in the outcome of the case, someone who no one can say has no interest in it but serving justice on all sides.

California governor Jerry Brown recently signed a bill prohibiting secret grand juries in cases involving deadly force by law enforcement. The current system elsewhere in the US serves neither the police nor the rest of us well. If we had a system in which we could have confidence, police officers who killed without justification would be treated like anyone else who kills without justification. And police officers who killed under circumstances that really did make sense would not thereafter live under a cloud of doubt. As they do now.

Bruce Jackson is SUNY Distinguished Professor and the James Agee Professor of American Culture at the University at Buffalo.