Should Special Prosecutors be Appointed for Police Involved Deaths?

December 10, 2014

courtroom juryThe recent decisions of two grand juries not to indict Officer Darren Wilson, in the Michael Brown case, and Officer Daniel Pantaleo, in the case of Eric Garner, have sparked protests throughout the country. While these are not the first cases that have subjected the grand jury process to scrutiny, social media posts regarding these incidents evidence a lack of clarity and understanding of the purpose and function of Grand Juries. The Fifth Amendment of the United States Constitution guarantees indictment by Grand Jury in all felony cases; in carrying out its constitutional purpose, the grand jury has historically been viewed as a “sword” for the prosecution and a “shield” for individuals. Over time, the “shield” function has been widely criticized as it has become so common for grand juries to issue indictments. However, with the recent decisions in the Brown and Garner cases, the criticism is that the grand jury has become a weapon to be abused by the prosecution.

A Grand Jury indictment only requires a showing of probable cause. The U.S. Supreme Court has held that probable cause is not a high bar “as it requires only the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” Considering this low standard, it is easy to see why grand juries issue indictments in the majority of cases. Probable cause, by definition, merely requires “a reasonable ground to suspect that a person has committed or is committing a crime.” If probable cause is found, an indictment is issued, if not than a “no bill” is returned, meaning no indictment. Grand juries do not decide the guilt or innocence of the defendant involved, but merely whether the evidence is sufficient to warrant a trial. While defendants have limited power to challenge an indictment, prosecutors will rarely convene a second grand jury after a first has decided not to indict.

In the wake of the Brown and Garner decisions, members of the public are call for reform of the grand jury process. Some have argued that judicial supervision of grand juries is necessary to prevent abuse, considering the overwhelming independence they have. Although independent in many respects, grand juries are convened by a court, and the courts instruct jurors on their responsibilities. Also, only the court has the contempt power to compel witnesses to testify. Giving courts the power to select jurors, and enforce existing rules of grand jury practice helps provide a “check” on the process. A better solution would be to require appointment by a special prosecutor, at least in police-involved killings. As the person who decides which investigations to pursue, what documents to subpoena, which witnesses to call, and what charges to recommend, the prosecutor has significant authority in grand jury proceedings. Courts have even held that a prosecutor cannot be forced to sign an indictment, even when refusal is against the grand jury’s wishes. The grand jury “is an accusatory body under the (almost) complete control of the prosecutor.” It is essential that the prosecutor be objective, and personally disconnected from the affects of any decision to indict or not indict. The mere appearance of impropriety due to professional relationships between police departments and city and county prosecutors is reason enough for a special prosecutor to be brought in. As protests continue, and federal investigations begin, it will be interesting to see whether grand jury reform will take place.