Mimesis Law
31 May 2020

If Not a Grand jury, Then What?

Aug. 14, 2015 (Mimesis Law) — In the common law system, there are two types of juries. Petit juries are the ones that most people are familiar with, those being the ones that sit in judgment during a criminal trial and who make a finding of guilt or innocence. The more important jury, however, is the grand jury. It meets in secret, listens to the prosecutor, and then decides if there is sufficient probable cause to bring criminal charges against someone accused of a crime.

The more common rule was that if you were accused of a felony, you had to be indicted by a grand jury before the state could put you on trial. Sadly, that is not always the case, as a number of states allow the prosecutor to determine whether an accused person should face trial or not, in what is called an “information.” It’s not really like the prosecutor couldn’t get an indictment anyway, the Sol Wachtler joke is that a prosecutor could get a grand jury to indict a ham sandwich if they wanted to do so. Every once in a while, a grand jury will go rogue, and fail to indict someone whom the DA wanted indicted, or the reverse.

It is for that reason that grand juries are considered a form of check and balance against the power of a prosecutor to harass innocent people. It allows a body to investigate against the government’s wishes and to return an indictment in case of wrongdoing. To allow citizens to complain to a grand jury and prompt an investigation, as with the case of the Texas Attorney General, Ken Paxton, who was indicted on securities fraud after a private citizen wrote the grand jury to complain. Repeatedly.

So in most states, if a police officer shoots someone, the prosecutor takes it in front of the grand jury and the grand jury decides. They decide if the officer stands trial, or if he or she walks. In about 80% of the cases, it is very clear cut. The dead guy was armed and was attacking police. The officer didn’t have a choice, and he shot the guy. It’s simple, you “no bill” the officer and everyone’s happy.

In the other 20%, the one in five where the police shoot and kill an unarmed citizen, is where you really want a rogue grand jury that seriously looks at the evidence and the facts. You want the grand jury that is willing to ignore everything but the evidence, and then to issue its decision to indict or not indict.

That won’t happen in California any more, since the governor just signed a bill prohibiting “secret” grand juries from investigating police shootings. So now we will depend on the California prosecutors to determine if an officer should be tried for killing someone who is unarmed.

For some reason, that does not inspire a lot of confidence. Weren’t we just talking about Deputy District Attorney union president Marc Debbaudt’s comments about how we don’t need special prosecutor’s to prosecute police shootings? And then he went on a rant when Baltimore DA’s decided to prosecute police?

So the solution may be what the L.A. Times has suggested, a return to the Coroner’s Inquest. Let the coroner present all the evidence to a jury, in public, and let them decide. How exactly it would work is something of a mystery, however, as they aren’t used any longer, and things have changed since then.

But there is little chance the trial-like proceedings of past decades will ever be seen again. The ideals of speed and transparency today face huge hurdles in the reality of complex forensics and the protections of police-officer privacy that have become deeply entrenched in state law.

And, of course, a Coroner’s Inquest isn’t quite the same as an actual trial in court, the foremost distinction is that it isn’t run by, or under the auspices of, the District Attorney.

The obstacles to the inquest as a forum for releasing circumstances of police-involved killings and for guiding prosecutors are apparent in several American counties that still practice them.

Then again, while this won’t likely suit the DA’s interests, it might better suit the public’s.

“Precisely because their verdicts do not carry binding or coercive consequences … inquests can aim more squarely than other legal proceedings at establishing the truth about a contested event,” [Paul]MacMahon writes in his article.

We will have returned to a petit jury in that case, but it is still a jury of the people, with the case being presented in public, not in secret.

How much do you want to bet that the DA and police will be against this option?

6 Comments on this post.

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  • Cornflake S. Pecially
    14 August 2015 at 4:59 pm - Reply

    “…a ROUGE grand jury that seriously looks at the evidence and the facts.” You must be from Texas or something…

    A lawyer from the eastern seaboard, especially New York, just couldn’t pull a line like that off without choking on what they think is corned beef.

    • Greg Prickett
      14 August 2015 at 5:08 pm - Reply

      That’s because there is no real barbecue on the eastern seaboard and they have to eat corned beef.

      It takes real barbecue to go rogue. But come on down, we’ll get you a plate full of brisket and a big glass of sweet tea to wash it down.

      • shg
        14 August 2015 at 5:27 pm - Reply

        For a fleeting moment, I though maybe CSP found a typo, and I was deeply appalled and ashamed. But then I realized that a very dear fellow was sending me barbecue from Texas, and I felt better and forgot all about the typo. I never cared for sweet tea, though. A nice Corona always worked best for me. But to each his own.

        • Greg Prickett
          14 August 2015 at 5:31 pm - Reply

          No sweet tea?!?

          Blasphemy in Texas, blasphemy and heresy. And whatever other -sies one can come up with.

          No BBQ for you now…

          But if you’re nice I’ll ask Gamso to come over (if he’s not still by the mailbox) to give you a tummy rub…

          • shg
            14 August 2015 at 5:47 pm -

            That’s okay. Ima sitting here with my Corona, a nice wedge o’ lime, waiting for the UPS man to show up with my dinner from Kansas City. They have some pretty little barbecue there and I’m gonna get me one.

  • Cornflake S. Pecially
    16 August 2015 at 8:19 am - Reply