Last fall, the use of grand juries in two high profile officer-involved killings of unarmed black men prompted scrutiny and controversy over the grand jury system. The decision by the grand jury in Ferguson led to an extensive examination of the process and questions about the intentions of the prosecutor.
Meanwhile, a recent grand jury decision in New York to indict another officer, responsible for the death of a black man in a staircase, has renewed questions as to why the officer in the Eric Garner case was not indicted, despite the use of a chokehold – prohibited by department regulations – and pleas that he could not breathe.
Now in California, a series of legislation has been introduced to address how these issues might affect cases in California. Senator Holly Mitchell (D-Los Angeles) has introduced SB 227, a bill to prohibit the use of the criminal grand jury in cases of officer-involved shootings or in cases where excessive force used by an officer results in the death of a suspect.
Senator Mitchell, in a phone interview with the Vanguard on Tuesday, said that this bill was not about Ferguson or Staten Island.
“I am not drawing a direct correlation to those events,” she said. But she added, “I think those events have caused everyone across the country to look deeper into their systems in their own states to really figure out what the process is.”
As a policymaker, she is looking to “rebuild the sense of confidence and trust between my constituents and their expectation around the judicial process that protects them in the event a cop has used excessive force.”
Recently, the Senate and Assembly held a joint public safety hearing where this issue, among many others, came up.
Senator Mitchell said, “As I looked more deeply into the grand jury system, particularly criminal grand juries, I talked to constituents, I realized it is such a kind of black hole. People don’t generally understand the difference between a grand jury and a regular jury trial.”
“It really lacks transparency,” she added.
Her press release noted that, originally, secrecy in grand jury proceedings was intended to protect the reputations of the unindicted, individuals accused of crimes whom grand jurors determined should not stand trial.
However, given modern realities, in “today’s world of blogs, lightning-fast news, and video cameras at the touch of a cell phone, the original purpose of the grand jury has lost its meaning.”
The unintentional consequence, the senator said, has become a way to keep citizens from being fully informed and involved in the trials of those peace officers accused of abusing their power.
“Community mistrust in the justice system arises when the public’s right to know is abridged,” said Senator Mitchell. “Too often eye witnesses and video evidence substantiating charges of wrongdoing on the part of law enforcement are not revealed or probed in context, resulting in seemingly inexplicable dismissal of cases by the grand jury. “
Senator Mitchell is not the first public official to speak openly about the need to reform the grand jury process. Senator Mitchell told the Vanguard that Judge Cordell believes that grand juries should be banned altogether.
LaDoris Cordell, a retired judge and Independent Police Auditor, said, “Proceedings in Grand Juries are secret, non-adversarial, and under complete control of the prosecutor. There is no place for secrecy in our criminal justice system, particularly where officer misconduct is alleged.”
Judge Cordell wrote an article last December that appeared in Slate, “Grand Juries Should Be Abolished.” In it, she noted that the Fifth Amendment has a clause protecting the public to answer for crimes without “indictment of a grand jury.”
She writes, “By codifying the grand jury in the Fifth Amendment, the framers intended to protect people “against hasty, malicious and oppressive prosecution.” On the state level, things are different.”
However, at the state level, judges preside over preliminary hearings which are open to the public and adversarial, meaning “Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.”
Unlike preliminary hearings, grand jury proceedings are not adversarial. As Judge Cordell notes, “No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.”
“In high-profile, controversial cases, where officers use lethal force, prosecutors face a dilemma,” she writes. “If they don’t file charges against officers, they risk the wrath of the community; if they do file charges, they risk the wrath of the police and their powerful unions. By opting for secret grand jury proceedings, prosecutors pass the buck, using grand jurors as pawns for political cover.”
Senator Mitchell’s law would eliminate the use of grand juries only in cases where the officer-involved shooting or use of force resulted in the death of the suspect.
Already, counties like Los Angeles and Santa Clara do not currently use the criminal grand juries in these instances, but she said, “It’s not consistent across the state.” So her bill would make it a statewide practice.
What her bill does not do at this point is create a process. “It’s silent,” she said. “Therefore, it would go through a typical process of information gathering – a criminal preliminary hearing.”
The bill is early in the process. The media has picked up on the bill, giving it press coverage, meaning some advocates are now aware of the bill. But so far, Senator Mitchell said there has not been real pushback from the law enforcement community.
“When the unarmed die at the hands of peace officers,” concluded Senator Mitchell, “people want to know why, what accountability will ensue, and how it can be prevented.”
—David M. Greenwald reporting