In wake of Eric Garner case, should grand jury system be reformed?

Continuing street demonstrations in the aftermath of the Eric Garner and Michael Brown cases are forcing Americans to reflect on whether the arbiters of US justice are too often getting it wrong, and what can be done about it.

Two grand juries – one in New York, where Mr. Garner was choked to death, and in Missouri, where Mr. Brown was shot – failed to return criminal indictments against police officers a little more than a week apart.

Rooted in history as a skeptical check on the crown, the American grand jury – a secret panel of 12 citizens – has become largely a prosecutor’s rubber stamp. Grand juries almost always return an indictment, except in one specific instance: when it comes to cases involving a police officer. 

The Garner case in particular is raising pressure on political leaders in the wake of a grand jury decision that many on both sides of the political aisle saw as “totally incomprehensible,” as conservative Washington Post columnist Charles Krauthammer said.

“The reality of what we saw and what the grand jury's decision is, is really what people are clamoring to understand better," New York state Senate Democratic Leader Andrea Stewart-Cousins told USA Today. 

The failure of a Staten Island grand jury to indict NYPD officer Daniel Pantaleo after cell phone video showed Garner pleading for relief has revived calls from lawmakers to tweak a grand jury system critics say gives too much leeway to police. 

According to a study by the Houston Chronicle, grand juries in Harris County, Texas, haven’t indicted a police officer in a decade, and grand juries in Dallas looked at 81 possible cases of police criminality between 2008 and 2012 and indicted only one police officer.

Police officers kill approximately 1,000 citizens per year in the line of duty, according to the Killed by Police Facebook page. On average, four officers are indicted for causing gun-related deaths on duty every year, according to a study by Bowling Green State University in Ohio. 

The reasons are manifold. In places like Staten Island, the pool of grand jurors, polls show, have more respect for police officers than in other boroughs, and may themselves be prejudicial. And leeway for police officers comes out of a deeply held social compact, experts say. 

“As a policeman you have an obligation to be held accountable for meeting certain standards,[because] you’re given monopoly on violence,” says Andrew Leipold, a professor at the University of Illinois College of Law. On the other hand, Americans, including grand jurors, are aware that “the police are in [these situations] because we asked them to be there.”

Prosecutors, to be sure, also risk a lot of critical good will with police departments if they indict an officer without a grand jury. And a major reason why grand juries are seen as rubber stamps is that prosecutors rarely bring cases they don’t think they can win, which means that the grand jury process is often a formality, since the standard for indictment is the lower bar of “probable cause” versus the “beyond a reasonable doubt” standard for a jury to convict in front of a judge. 

In 2010, federal prosecutors sought indictments in about 162,000 cases, according to the Bureau of Justice Statistics. Grand jurors declined to return an indictment in 11 of these. 

Protests show that perceived injustices such as the Garner case create a destructive brand of ill will that New York Gov. Andrew Cuomo on Thursday called “corrosive to society” in a radio interview.

Americans can expect lawmakers in New York to address the grand jury system in the next session, potentially by creating a special prosecutor position to investigate police-related incidents, and also making the grand jury process and testimony more transparent.

In April, Wisconsin Republican Gov. Scott Walker signed first-in-the-nation legislation requiring an outside investigation whenever a person dies in police custody. The new law requires a team of at least two investigators from an outside agency to lead reviews of such deaths and a public report to be released if criminal charges are not filed.

In both the Brown and Garner cases, Professor Leipold says, the grand juries took far more time and interviewed far more witnesses before coming to a verdict before such bodies usually do. In terms of the care taken, he says, “This is how grand juries are supposed to work, and never do.”

In the Garner case, as well as the grand jury proceedings over the death of Brown in Ferguson, Mo., prosecutors may have brought cases they didn’t feel they could win in order to appease public anger.

The problem is that many Americans found the outcome of the Garner case, after reviewing the video, baffling.

“The issue is, when we have a more-or-less unfounded case against a police officer (usually based on the notion that because someone died, someone else should go to prison - even if their role in that death doesn't meet the legal standard for criminal conduct), the standard 'defuse the mob' tactic is to toss it to a grand jury,” writes commenter Dave Ack on the conservative RedState.com blog. “This spares the DA from the political backlash of having to either (A) try a man he can’t convict, or (B) stand up and say, ‘There’s no basis for charges.’ The problem is, at least this time, the mob is now [mad] at the grand-jury *system* for not giving them their ceremonial head on a platter.” 

One immediate issue with both grand juries in Missouri and New York is that they allowed the police officers to testify on their own behalf – a nicety that's not part of judicial tradition and which is never extended to a civilian under investigation.

In fact, Supreme Court Justice Antonin Scalia, in the 1992 US v. Williams case, wrote that “neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.”

But rather than reforming the grand jury system – which could have unintended consequences, including potentially revealing identities of innocent people under scrutiny – some experts say lawmakers should look more closely at so-called “ordinary injustices,” where unconstitutional court traditions and habits become institutionalized.

Last month, for example, the Ohio Supreme Court found that for the past 17 years no arrest warrants issued by the Toledo Municipal Court had listed probable cause for arrest – a violation of both the Ohio and US Constitutions. A supervisor who instructed clerks on the rules testified he didn't know what probable cause even meant, meaning a constitutional check on police power had become a rubber stamp.

When nobody bothers to question such injustices, “they become commonplace,” says Phil Stinson of Bowling Green State University.