When I was in private practice, I was struck by the fact that the clients who gave the most heartfelt thank-yous were my criminal defendants who lost their cases. I was baffled until I received a phone call from a client's mother, profusely thanking me for the help I gave her son. Concerned that she misunderstood what had happened, I cut her off, explaining that her son's appeal was denied, the case was over, and there were no other legal options while he served the rest of his sentence in prison. She explained, "We know. But you cared, and for the first time, he finally had a chance."
Watching the gathering protests over the lack of indictments in Ferguson and New York City, I am struck by the call — not for a conviction — but for a trial, a chance to review and air the evidence. It is clear to me that the best possible reform that can come from these complex tragedies is not to create special proceedings for police officers — but to get rid of grand juries for everyone.
Not all killings are murder. There are good and important reasons that a police officer is given more legal authority to use lethal force than an average citizen. The problem in the recent cases is that prosecutors are failing to explain publicly and clearly why they do not want to prosecute the two police officers who have killed citizens. There very well could be compelling legal or factual reasons not to — and if those reasons exist, the prosecutor has every right not to bring charges. (In fact, under the law and the Constitution, a prosecutor should not bring charges if he or she believes that the evidence is flimsy or the case cannot be proved.)
In Ferguson and New York City, the grand jury appears to be a political cover for what otherwise could be a legitimate decision not to prosecute. Grand juries are designed to be able to indict ham sandwiches because typically the prosecutor presents only the best evidence, does not reveal exculpatory evidence, and the defendant is not even present to know who is or is not testifying against him.
Despite such a one-sided process, grand juries had a valuable purpose in ensuring that a prosecutor was not trumping up charges to serve a personal or political agenda. Historically, they were created to check abuses of power in the decision to initiate a misguided criminal proceeding.
Ferguson and the Eric Garner case, however, are highlighting a disturbing contemporary corollary — that grand juries can be manipulated for political means. Instead of having a public discussion as to why a case is not being brought, the grand juries are immunizing the prosecutor from scrutiny and accountability.
Although some are calling for special prosecutors to lead grand juries against police officers, that solution is equally lacking in moral credibility. Appointing someone with an expectation of an indictment will not make an unfair process less unfair — it simply shifts the mark for whom the odds are stacked.
There is an better solution — simply getting rid of grand juries altogether. Half of states have already done so and instead rely on preliminary hearings to be the means by which a prosecutor's abuse of power is checked. Unlike the grand jury system, the preliminary hearing is completely transparent. It is recorded, the defendant is present (although does not present or contest evidence), and a judge decides if there is enough evidence to hold a trial. The standard is low enough so that the majority of charges, just like in the grand jury process, will result in an indictment.
The value of transparency, however, cannot be overstated. In most states, the grand jury witness statements can be used in future proceedings, ensuring that an unreliable witness will not be in front of a jury that determines guilt. In California (where I practiced for 10 years), whether the case went to trial or was resolved by plea, a defendant also has the right to appeal the indictment, permitting courts to ensure that there was enough evidence to bring charges to trial. There is no secrecy, no personal vendettas, and no political cover for not bringing charges.
People do not need to win to feel good about the criminal justice system. To the contrary, the simple call for a trial reveals an intuitive desire to know that the procedures are fair, and the odds — however long — are not stacked. It is time to relegate grand juries to the dustbin of history.
Kari Hong is an assistant law professor at Boston College.