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Grand juries have become increasingly controversial in cases involving killings by police. Why?

"No Grand Jury" signs were spotted at the Dec. 3 Black Lives Matter protest
MinnPost photo by Peter Callaghan
"No Grand Jury" signs were spotted at the Dec. 3 Black Lives Matter protest in the Minneapolis City Hall rotunda.

Over the past couple of weeks, those protesting the shooting of 24-year-old Jamar Clark by Minneapolis Police have developed a new mantra: “No Grand Jury.”

In the wake of highly publicized non-indictments in similar cases around the country, grand juries have become increasingly controversial in incidents of officer-involved killings.

Last year, California became the first state to ban them in cases involving police shootings, citing distrust among the public that justice can be properly served through grand juries’ confidential proceedings. “The use of the criminal grand jury process, and the refusal to indict, as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system," said the bill’s author, California state Sen. Holly Mitchell, in a statement about the law. 

So far, about 2,400 people have signed a petition asking Hennepin County Attorney Mike Freeman to assign a special prosecutor to the Clark case, one potential alternative to a grand jury. The petition, published by community activist group Neighborhoods Organizing for Change (NOC), says grand juries have proven ineffective in holding cops accountable.

“We’re asking for something that’s pretty logical, pretty standard — not very extreme,” says NOC’s Wintana Melekin.

But Freeman isn’t persuaded. He announced his intentions to use a grand jury shortly after the Clark shooting. In a recent interview, he defends the process as the most independent option available, and denies the assertion that his office wouldn’t fairly present the facts to the jury just because the case involves police officers.

“People have suggested … that prosecutors and cops are too close and we would never prosecute a cop,” he says. “And that’s simply wrong.”

How grand juries work in Minnesota

Grand juries don’t decide innocence or guilt. In the Clark case, a grand jury would be made up of a randomly selected group of Hennepin County residents, and would simply determine whether the two officers should face criminal charges. As county attorney, Freeman’s office would be responsible for presenting the evidence.

Other states, like California, use grand juries much more frequently than Minnesota. Here, prosecutors are only required to convene one when seeking a sentence of life in prison, such as with a first-degree murder charge.

Jamar Clark
Credit: Kenya McKnight
Jamar Clark

The Clark case is a rare example of Minnesota prosecutors opting to use a grand jury when it isn’t required.

Freeman says he plans to assign two senior prosecutors to work on the case. One will present the evidence to the grand jury — including all footage of the incident — and the other will write up a report on the case, which Freeman says he will release to the public along with the grand jury decision. Because of the secretive nature of these proceedings, certain materials — such as the transcripts — won’t be released.

Freeman couldn’t talk specifics about the case, but says he chose the grand jury route because it adds a layer of independence by involving community members in the charging decision.

“I wouldn’t let a gross injustice occur,” says Freeman. “We have the right, after the grand jury is done, to do what we think needs to be done. So my decision-making process will be all over this.”

Skepticism fueled by Ferguson

On a federal level, grand juries almost always choose to indict. As data blog FiveThirtyEight points out, in 2010, out of 162,000 federal cases, grand juries delivered indictments on all but 11. Hence the adage: A prosecutor could get a grand jury to indict a ham sandwich.

But research indicates cops have historically been treated differently by the criminal justice system. One study, published in 2010, looked at 8,300 allegations of police misconduct, finding that only 3,238 led to charges by a grand jury or prosecutor. 

Anecdotal evidence has also made people more cynical of grand juries in recent years. A high-profile example came in November 2014, when a grand jury failed to return an indictment in the case of Darren Wilson, the Ferguson, Missouri, officer who shot and killed Michael Brown, an unarmed black man. Many monitoring the case — including one juror — accused St. Louis County prosecutor Robert McCulloch of mischaracterizing the facts of the shooting to favor Wilson’s version of events. After McCulloch announced there would be no charges, residents rioted in the streets to protest the decision.

“The [grand jury] process itself is biased in favor of police,” says NOC’s Melekin. “It has a proven record of not working.”

Former federal prosecutor Mark Osler, who teaches at the University of St. Thomas School of Law, says skepticism over the grand jury process isn’t unfounded. Though it’s in theory a more objective process, a prosecutor has a lot of leeway over what the jury hears — and doesn’t — and there have been plenty of examples of district attorneys using a grand jury for political insulation against a potentially unpopular outcome. 

“It’s a very closely controlled mechanism,” says Osler.

That doesn’t mean a grand jury is necessarily wrong for this case, says Osler. He also notes that the use of a special prosecutor wouldn’t guarantee complete objectivity either.

“The fact is that with all of those mechanisms, we’ve seen a high rate of police shooters going uncharged,” he says. “And so it’s difficult to say that one is better than another.”

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Comments (23)

Grand Jury Secrecy

Adding to the reasons for suspicion is the fact that grand juries are largely secret proceedings. The public is barred from the room during the presentation of the evidence, and a transcript need be released only if an indictment is secured.

Two things

There are two things it's useful to know about the interaction between grand juries and the police. The first is that grand juries are the creatures of the prosecution, and that any decent prosecutor can get any grand jury to indict anyone if that's what he wants. The grand jury system is like a hockey game where only one team is allowed to take the ice. If that team doesn't score as many goals as it wants it's only because it doesn't want to.

The second thing to keep in mind is that no prosecutor ever wants to prosecute a cop, except perhaps under only the most dire circumstances. The reason for that is that prosecutors need to work with cops on a daily basis, and let's just say that the working relationship going forward between any cop and any prosecutor who prosecutes cops, will be troubled at best.

So what are the consequences here? The easiest way out is to fashion a solution which in which the blame for any injustice, or perception of injustice, can be placed on people who don't have any continuing relationship with the prosecutors and the cops that anyone needs to be concerned about. Specifically, in the secretive grand jury proceedings, the prosecutor doesn't aggressively seek an indictment, pretty much allowing the grand jury members natural reluctance to indict cops, to prevail. And that is the scenario we have seen played out time after time.

Well...

No one should expect a special prosecutor will "less" secretive. And even if you bring charges police are frequently acquitted (The Rodney King riots were NOT triggered by a refusal to prosecute).

The problem is that we've trained our police force to demand compliance and escalate violence (including lethal force) until that demand is met. That training is codified in procedure, and provides the legal justification for use of force. The idea of authorizing force and then prosecuting for using force according to procedure is obviously problematic, no matter where the decision to file charges comes from.

Prosecutors special or otherwise cannot file charges unless they have a reasonable expectation that they can prevail at trial. People will only have "more" confidence in special prosecutors until they realize they're getting the same results... then you're back to square one again.

The problem is training and procedure.

Run Away Grand Juries

Grand Juries have a lot of power to independently investigate whatever they want if the Grand Jury members take control of the process and don't become passive tools for the district attorney.

The Grand Jury can subpoena any witness they want, even over the objection of the prosecutor. They can also expand the investigation beyond what the prosecutor wants. This includes not only investigating the shooter, but also investigating any cover-ups and handing up indictments for false reporting and / or obstruction of justice. If the prosecutor tries to limit the Grand Juriy's investigation, the Grand Jurors can actually petition the Judge overseeing the proceedings for assistance. All it takes is one or more Grand Jury members who are smart and aggressive enough to take control of the proceedings.

the problem is that most Grand Jury appointees don't understand the power they have and don't have the background to take advantage of that. If you know anyone who gets appointed to a Grand Jury, make sure that they understand this and encourage them to show their independence and don't just blindly follow the prosecuting attorney's directions.

Justified or not.

The critical issue is whether Clark was resisting arrest and attempted to take the officer's weapon (as police suggest) or if he was handcuffed and wasn't capable to doing so. If police officers have a reasonable fear for their life, they are allowed to defend themselves. Whoever is making the determination will weigh the facts and make a decision. To say that one process or another will not result in a just or unjust decision at this point is really not appropriate.

Read the Ferguson grand jury documents first

It is obvious from the comments posted here, the article's premise, and the position of the NOC, that most every one now believes that all grand jury proceedings are corrupt and therefore their decisions are biased but if the grand jury documents from Ferguson are read (and it can be a tedious read at times) it becomes apparent pretty quickly that the grand jury in that case had an enormous responsibility and an incredible amount of conflicting eye-witness accounts to sift through and they had to sift through all the inconsistencies and the consistencies in order to come to their decision. That is what is key in the Ferguson case. All those people who wanted a certain outcome and were disappointed didn't read the grand jury documents before rioting or passing judgment on the jurors or the outcome. They made their decision about what they wanted the outcome to be and when it didn't go their way, they refused to consider the possibility that their desired outcome was not reached because there were enough consistencies between Darren Wilson's account and the physical evidence of the autopsy and medical examination and too many inconsistencies between all the witnesses who came up with their own story as to why 180+lb Michael Brown was "being held against his will" against the side of the police car by a policeman using only one arm while sitting down inside a police vehicle. Remember, the grand jury vote did not have to be unanimous either.

The Ferguson case should be studied and read by law students every where and by everyone and anyone interested in the studying the fallacies and frailties of the human mind and memory in order to capture insight into the grand jury process, the psychology of the human mind, memory, the capacity and tendency of the mind to create a story around a very small sliver of facts and how the mind weaves a story based on its own set of experiences and only on the parts that it sees. Daniel Kahneman reminds us of this in his book "Thinking Fast and Slow": "System 1 [the unconscious, intuitive influence on most of our decisions and story creation] is designed to jump to conclusions from little evidence--and it is not designed to know the size of its jumps."

Ferguson didn't demonstrate that the justice and grand jury system don't work or are corrupt or are biased toward police officers. The opposite in fact. It is not always corruption that explains a certain outcome. Mostly it is the hapless limits of the human mind and human condition.

It's not really the role of a

It's not really the role of a Grand Jury to resolve conflicting evidence or witness testimony. Leave that to be resolved under cross examination in a trial.

Nigeria and the USA?

Name the only two countries that have not done away with the Grand Jury?

Justice....

Isn't about getting the outcome you want or demand, and failure to get such outcomes doesn't necessarily point to a failure of justice. Meanwhile, if we want less lethal confrontations with cops we have to change the training and procedures. Police violence doesn't flow out of grand juries.

By the way, special prosecutors can run amok as well.

Honor and Patience: The Foundation of Trust

Hennepin County Attorney Freeman is an honorable man. Let us build our trust not on the fear of what might be, but on what we know to be true.

I agree...

Prosecutors don't necessarily limit their indictments to those they "want" to pursue, cops are indicted all the time whether prosecutors want to indict them or not. Integrity and professionalism aren't necessarily a "given" in all places at all times but I don't think Freeman has ever shied away from uncomfortable prosecutions.

Unfortunately it looks like some people just want indictments whether there's actually grounds for indictments or not. I don't know where we're going with that.

"It is obvious from the

"It is obvious from the comments posted here, the article's premise, and the position of the NOC, that most every one now believes that all grand jury proceedings are corrupt and therefore their decisions are biased but if the grand jury documents from Ferguson are read (and it can be a tedious read at times) it becomes apparent pretty quickly that the grand jury in that case had an enormous responsibility and an incredible amount of conflicting eye-witness accounts to sift through and they had to sift through all the inconsistencies and the consistencies in order to come to their decision. That is what is key in the Ferguson case."

I certainly don't believe that grand jury proceedings are corrupt, just as I don't believe a sword is corrupt, just because it has a point at the end. Bias, isn't a word I would choose, but it's not entirely inappropriate. After all, grand juries hear only one side of a story presented by advocates, not by disinterested individuals.

The Ferguson grand jury could easily have brought back an indictment. One way to do that would have not to allow them to see conflicting evidence, reserving that for a trial. The choice to present such evidence by the prosecutor was the clearest proof possible that the prosecution did not want the grand jury to bring back an indictment. The grand jury isn't to blame for that.

Ferguson?

What's the point in bringing indictments that won't yield a conviction? These criticisms of Grand Juries seem to assume that failure to bring an indictment is some kind of indictment of Grand Juries. I remind everyone, one of the biggest riots in recent US history followed the acquittal (at trial) of the cops who beat up Rodney King. In Ferguson you had a guy who robbed a convenience store and then attacked a cop and tried to take his gun away. Despite efforts to pretend these guys are modern equivalents of Rosa Parks no jury can convict when a cop follows procedure in a physical confrontation with a violent person. You can complain about indictments but all indictments are gonna do is push the problem out. Instead of rioting because there was no indictment you're gonna have riots because there was no conviction.

I just don't think transparency is really the issue. This has been going on for decades and "transparency" isn't going to resolve it. I see people demanding a certain "result" here and I think it's folly to assume that any system, no matter how transparent, that fails to yield the desired result, will resolve the problem. Transparency isn't going to reduce lethal confrontations with the police because transparency isn't causing those confrontations in the first place. Transparency won't restore confidence in the system if the system doesn't produce the results people are looking for. I'm sorry but I just see this grand jury argument as an attempt to move the deck chairs around and I think the reason this problem is soooooooo persistent is people keep finding different deck chairs to move around instead of dealing with the actual problem.

Well said

"Transparency won't restore confidence in the system if the system doesn't produce the results people are looking for."

Exactly!

What's the point in bringing

What's the point in bringing indictments that won't yield a conviction?

It is really unethical for a prosecutor to seek an indictment where he doesn't think he can get a conviction. But there are reasons why a prosecutor might do it. I don't think the Baltimore prosecutors think they can get a conviction in the police case there, but the political pressure was so intense, they had no choice but to bring charges. It should be noted that the grand jury process can be used to divert pressure from the prosecution which would otherwise force them to bring charges where they don't think they can get a conviction.

"I just don't think transparency is really the issue. '

Grand jury proceedings are secret, or at least secretive, not transparent. It's hard to know what will restore confidence in the judicial system. The system itself is flawed, but also it isn't really designed to do what many people think it should do. There are technicalities that people get off on. There is the presumption of innocence. There is the necessity of evidence that must not only be convincing but also admissible. Our system of Anglo Saxon law is flawed certainly, and it's not the only fair system possible. But are any other systems any better?

Grand juries have several purposes. One of them is that the prosecution can use them as an investigating tool. People don't have to talk to cops, for the most part. I am often amazed that do many do. But absent privilege, people have to respond to grand jury questions, and that can be very helpful, and is a power that can be abused.

Freeman's grand jury argument is disingenous

Freeman claims that taking the Jamar Clark case to a grand jury is necessary because the grand jury is made up of a cross section of society, 23 fair-minded people which, in turn, he argues, insures a fair result. What Freeman doesn't say, and for some reason the MinnPost piece doesn't address, is why then is this process largely reserved for police officer-involved cases? In other words, if taking the case to the grand jury insures fairness, why aren't all serious cases also taken there? The answer, of course, is that by taking such cases to the grand jury, prosecutors leave the tough decision-making to others. After all, no elected official wants to be viewed as too tough on cops. And prosecutors, as elected officials, well realize that only in very rare instances will the majority of the public support charges in police brutality cases. And so it follows, of course, that cases of this type are routinely taken to a grand jury while other serious criminal case are just as routinely charged by prosecutors themselves. There's a good reason the state of California outlawed this process. Wouldn't bet the farm Minnesota will do the same.

"Freeman claims that taking

"Freeman claims that taking the Jamar Clark case to a grand jury is necessary because the grand jury is made up of a cross section of society, 23 fair-minded people which, in turn, he argues, insures a fair result."

He is seeking a scapegoat, at least at this stage. He was elected to make the tough decisions, not grand jurors. And of course there is absolutely nothing about the grand jury process that partakes of the fair. It is impossible to reasonably dispute the fact that the grand jury process is utterly and entirely unfair, and was designed to be so.

Well...

I don't see what's so transparent about Freeman or any other prosecutor deciding on his or her own whether or not to prosecute? What, are we going to put a camera in their office while they look at the evidence? The practical effect of a decision not to indict is the same whether it comes from a GJ or the prosecutor. I don't think the GJ is actually going to provide any real cover for Freeman in this case, I mean people are already accusing him of playing politics so that train's already left the station.

Why can't we just get back to making decisions based on the evidence? I know that's a novel idea but in the end, that's what comes out in the wash anyways.

Grand Juror identities are

Grand Juror identities are secret, the evidence is secret, the testimony is secret, unless a witness chooses to go public after the fact.

If it's the prosecutor, or even a special prosecutor, there is someone who can be publicly called to account for the decision. Maybe not quite transparent, but there is definitely more accountability.

"Why can't we just get back to making decisions based on the evidence?"

That's kind of the point of the trial. The evidence and testimony is publicly laid out, it's scrutinized and challenged by both sides, and someone tries to come to the best decision they can with what holds up to that examination.

Why grand juries in police shooting cases and not in others

Paul--you advocate "making decisions based on the evidence." Excellent suggestion. But please then tell me why County Attorney Freeman needs a grand jury in police shooting cases to do that? And if a grand jury is necessary to make such a decision in police shooting cases, then please explain why grand juries aren't normally asked to "make decisions based on the evidence" in serious cases not involving police shootings? And also please explain why, in your view, California outlawed the use of grand juries in police shooting cases.

Ron

You're assuming that the grand jury and Freeman are not going to make an evidence based decision simply by virtue of using a grand jury. That's YOUR assumption, but it's not a fact based assumption, you just have less confidence in the system than others.

We can talk about California or some other place that doesn't use grand juries if you want, but show me your data that police shootings have decreased and successful prosecutions have increased as a result?

I don't care if we use Grand Juries frankly, it's what happens at trial that matters and the vast majority of cops put on trial are acquitted regardless off how they were indicted.

The difference between a cop that's indicted and convicted for serial rape and a cop that's indicted and acquitted for murder or manslaughter isn't the grand jury, it's the underlying laws. Cops are not authorized to rape people, they are authorized to use deadly force. We're not going to change that by eliminating grand juries, but you're welcome to try.

Transparency

You get transparency in a trial. Indeed that's one of the arguments a prosecutor will use to get an indictment from a grand jury acting in secret: "Ladies and gentlemen, of the grand jury, something terrible has happened here, and we can't in this room today, and not you, not me, not any of us present today can understand what exactly that is or all of it's ramifications or to determine if anyone bears responsibility for it. It's up to you to give our community the opportunity to learn those things fairly, publicly, in a forum where all sides can be heard. Only then, only under those circumstances can justice seem to be done, and in fact be done."

Something along those lines.

If transparency were the issue...

The issue is the frequency of deadly force applied the police, not the transparency with which they apply it. You can play around with grand juries all you want but you're missing the point. Your assuming that a system that sanctions deadly force is going punish cops for using the force they've authorized to deploy, and that's a bizarre assumption. Go ahead, wave a magic wand and get rid of grand juries, that won't stop cops from using deadly force, and it won't put cops using authorized deadly force in prison.