The process of having a grand jury decide whether to bring criminal charges against a defendant has fallen under scrutiny following the failure to indict over the police deaths of Michael Brown and Eric Garner. Indeed, many activists and experts are demanding alternatives, especially in cases that involve alleged officer brutality.
Stephen A. Saltzburg, a law professor at George Washington University, said the grand jury system overwhelmingly favors prosecutors. At the federal level, grand juries decline to indict in less than 1 percent of cases. In 2010, the last year these statistics are available, grand juries declined to issue criminal charges in only 11 out of 162,000 federal cases, or 0.0068 percent of the time, according to the data journalism website FiveThirtyEight.
But grand jury cases involving police violence are the exception. A Houston Chronicle investigation in 2013 found that grand juries cleared police in shooting cases 288 consecutive times.
Experts and activists say this indictment discrepancy reveals an inherent conflict of interest. When district attorneys take up cases against police in the same jurisdiction, they may not present the strongest case. Prosecutors rely on police for evidence in cases, and they repeatedly work together to go after alleged criminals.
“Prosecutors depend on police officers to gather evidence,” Saltzburg said. “Prosecutors don’t like filing charges against police officers.”
The grand jury system, Saltzburg said, gives prosecutors political cover for failing to pursue alleged police malfeasance: “They can basically hide behind the grand jury, saying, ‘The grand jury didn’t want to indict the police officer.’”
But states are not required to use grand juries — only the federal government must do so under the Constitution. And some states have altered the traditional grand jury system in an attempt to improve the much-criticized indictment process.
Making grand juries work
Corey Rayburn Yung, criminal law professor at the University of Kansas School of Law, said that to avoid the conflict of interest of requiring prosecutors to pursue officers with whom they normally work, the case should simply be handled by a different prosecuting attorney.
“Having someone at the federal level or from another jurisdiction to handle the case [would be the best option],” Yung said.
Hawaii has a different solution, which removes the power of the local district attorney almost entirely.
According to the provisions of the Hawaiian state constitution, an independent counsel will “advise the members of the grand jury regarding matters brought before it,” and the members will be elected from “among those persons licensed to practice law by the supreme court of the State and shall not be a public employee.”
The intended effect of the state constitutional provisions is a more impartial investigation.
Every state has an option for preliminary hearing, said Corey Rayburn Yung. In most states, prosecutor has sole discretion to indict, and only if the defendant moves to have a hearing would there be one.
A judge takes the final decision in a preliminary hearing. The advantage is that, usually, preliminary hearings are held in open court, as opposed to the secrecy of a grand jury.
“If a prosecutor is not going to commit to presenting strong case possibilities, it doesn’t matter who’s deciding the case— the judge or the grand jury,” Yung said.
In a preliminary hearing, the defense can cross-examine the prosecutor’s witnesses. Even hearsay is often considered admissible evidence, according to the DOJ website.
In cases that involve law enforcement officers, this is “not a particularly compelling alternative,” Yung said. The prosecutors may not be committed to gathering compelling evidence against the officer involved and now the defense lawyer can also have his arguments.
In Wisconsin, Republican Gov. Scott Walker signed Assembly Bill 409 this April, which waters down the district attorney's influence in police misconduct cases and requires the release of independent public report.
The law says that an investigation into a law enforcement officer must be conducted by three experts, at least two of whom are required to be from an agency that does not employ the officer in question.
Their findings will be presented to a five-member board, which has to include a former judge, former district attorney and a Wisconsin college professor who is an expert in the subject.
The board will then make recommendations to the district attorney “and forward the report to any person responsible for disciplining an officer involved,” according to the bill, which adds that “the attorney general shall release the report and any accompanying written files unless the information must be kept confidential by statute.”
Wisconsin State Rep. Gary Bies, who introduced the bill, told USA Today that deaths involving officers are emotional incidents for the whole department and having outsiders step in can help ensure proper handling of a case.
The three investigating experts can "take more of a look at it in a methodical manner," Bies said.