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

Many of those protesting the shooting of 24-year-old Jamar Clark by Minneapolis Police say grand juries have proven ineffective in holding cops accountable. 

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

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.

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“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.”

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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.”