The failure of grand juries in St. Louis County, Missouri, and Staten Island, New York, to indict white police officers for the deaths of African-Americans Michael Brown and Eric Garner has prompted calls to abolish the grand jury. The most common existing alternative to a grand jury is a preliminary hearing before a judge to determine if probable cause exists for going to trial. Two other pre-trial options also have drawn interest from reformers. Outside analysts could help a prosecutor make the decision to indict or not. Or random selection of jurors and mandated racial diversity in grand juries, steps taken to reform the jury system in 1968 and 1975, could make the system more effective. In the wake of Ferguson and other miscarriages of justice, today’s civil rights activists have called upon the federal government to “provide equal justice under the law.” To achieve this goal, grand juries must mirror the racial composition of the community where the shooting occurred.
The problem with grand juries is that they nearly always decide to indict – except when police are involved. Former New York State Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” But a recent Houston Chronicle investigation found that “police had been nearly immune from criminal charges in shootings” in Houston and other large cities. In Dallas, grand juries reviewed 81 shootings by police officers between 2008 and 2012 and returned just one indictment. Over that same span, no Georgia police officer was indicted for a fatal shooting. Cops who appear before a Georgia grand jury accused of a criminal act receive special privileges denied ordinary citizens. Not only is a police officer allowed to bring an attorney into the grand jury room unlike civilians, but also the attorney is permitted to stay for the entire proceeding and to make a closing statement to the jurors after the prosecutor has made her case.
This bias has little to do with the historical roots of the grand jury, which was originally designed to create an investigative procedure responsible to the people. Since the 12th century reign of the English King Henry II, juries of twelve men selected from a local community made formal accusations against people suspected of breaking the law. Over the next several centuries the grand jury came to be seen as a buffer between the state and the accused individual because it infused the voice of the community into the judicial process. In the 1760s and 1770s, American colonists often used the grand jury to thwart royal policy by refusing to indict alleged lawbreakers charged by royal officials. All of the new American states retained the grand jury. An 1816 classic text on American criminal law praised the use of grand jury indictments as “the most constitutional, regular and safe, mode of proceeding upon criminal charges.”
By the late nineteenth century, however, a crime wave blamed on immigrants led an increasing number of states to adopt a preliminary hearing before a judge to determine if a person accused of a crime should be brought to trial. While a grand jury used a prima facie standard of evidence – that there was evidence good and sufficient to establish a given fact or chain of facts, the preliminary hearing introduced a probable cause evidentiary standard – a judge decided whether there was more evidence for an indictment than against. A preliminary hearing moved faster than a grand jury and criminal defendants who came to trial by the preliminary hearing route, rather than the grand jury route, were tested by a lesser evidentiary standard. Courts and the legal profession slowly resolved the discrepancy between the two systems by adopting the less demanding probable cause standard in both forums.
The use of the lower evidentiary standard works to the advantage of police officers accused of shooting a black person. Studies show that white officers are quick to shoot when confronted by a black person whose actions can be described as threatening. A credible threat provides the officer with evidence that tends to exonerate him from guilt.
Two reform models aim to bolster the probable cause standard in the hope of mitigating the inherent racial bias in the question of whether or not a police officer should be brought to trial for a shooting death. One relies on an outside agency to conduct an impartial investigation of an alleged criminal act, but this system has proved no better than the existing one. In April 2014, for example, a white Milwaukee police officer fatally shot an unarmed African-American man sleeping in a downtown park. Operating under a new state law, the Wisconsin Department of Justice, Division of Criminal Investigation, carried out an eight-month investigation independent of the Milwaukee police department. In addition, the county district attorney sought guidance from a neighboring police department, as well as a national expert in the use of violent force. At the end of the process, the district attorney applied a probable cause standard and concluded that the police officer’s “use of force in this incident was justified self-defense and that the defense could not be reasonably overcome to establish a basis to charge the officer with a crime.” In short, the Milwaukee system gave the prosecutor access to more information and expert analysis, but allowed him to rely on probable cause and to make the decision not to indict the officer without including the affected community’s voice.
A second reform possibility offers more hope of fairness. It gives the minority community a participatory role and embraces the democratic nature of jury service. In 1975, a landmark Supreme Court decision (Taylor v. Louisiana) gave every litigant the right to grand and trial juries selected at random from a fair cross-section of the community. The ideal of the cross-sectional jury rejects the view that jurors must be impartial, instead valuing people who represent their community’s perspectives and values.
At present, this scheme founders because counties administer grand juries and counties are often racially segregated. The demographic profile of St. Louis County, Missouri, for example, from which officer Darren Wilson’s grand jury was drawn, is roughly the opposite of the city of Ferguson. The county is about 70 percent white and 23 percent black, whereas Ferguson’s population is 67 percent black and 29 percent white. Operating under the Supreme Court’s mandate that jurors be selected at random from a fair cross-section of the community, the jury commissioner of St. Louis County created a racially balanced jury pool that resulted in three blacks and nine whites actually serving on the grand jury. The racial composition of the jury would have been reversed if the jury commissioner were required to mirror Ferguson’s demographic profile.
Of course, no procedural reform guarantees justice. But, the second system offers our best hope. Representing a minority community accurately in the grand jury room will ensure a fair cross-sectional, racially diverse jury. Its democratic nature will bolster public confidence in the criminal justice system and help preserve community peace in trials involving race-related crimes.