Grand Jury Procedures for Cops Should be the Same as for Anyone Else

Posted on December 5, 2014


The police already operate under a different set of rules; that should make them more accountable for their actions, not less.

The police are sent among us, armed with deadly force, to keep order and peace. This should not absolve them of the harm they may do in the conduct of their duties; just the opposite. Because they are given authorization to use force (when necessary) against the citizens of a democratic society, they must be held to a higher standard. Their conduct must be transparent, not secretive; it must be justified, and those justifications must hold up to public scrutiny and be acceptable to the public. That’s what police look like in a democracy. What we have now, sadly, approaches a police state.

Just like the rest of us, the police don’t get a free pass to kick in your door, to rifle through your belongings, to detain you or beat you or  shoot you. Legally, they need justification to do these things: special authorizations in the form of warrants, probable cause, or direct observation of a crime in progress. When they cause unjustifiable harm and there is no consequence, that is a failure of our legal system.  It sets police apart from – and in opposition to – the populace that they are supposed to be protecting.  This is why people are so angry about the New York Grand Jury decision not to indict the officer involved in the Eric Garner chokehold death; there is video, it is pretty unambiguous, and most of us don’t see any justification for Eric Garner’s death. It doesn’t help that this comes a week after the Grand Jury in Missouri declined to indict the officer involved in the Michael Brown shooting.

So, what is a Grand Jury? In the past, it was regarded as a tool to protect citizens from unwarranted prosecutions. In recent decades, it has instead become widely regarded as a tool of the prosecutor, nearly always rendering a decision according to the prosecutor’s design. This happens because Grand Juries – made up of ordinary folks with little legal background – are dependent on the prosecutor’s guidance, for one thing; and for another, the prosecutor decides what evidence to present to the Grand Jury. In the end, the Grand Jury usually does whatever the prosecutor wanted it to do. Most suspects are indicted. It seems that most cops are not.  Hmm.

It’s important to keep in mind that a Grand Jury does not convict anyone. All it does is decide if there is enough evidence to bring charges. The standard of evidence is not “beyond a reasonable doubt”; it simply requires a preponderance of the evidence. One must wonder why the video of Eric Garner’s death was not considered sufficient for an indictment.

Well, here’s some prosecutor-speak for you, as reported in the New York Times:

Marvyn Kornberg, a Queens lawyer, has represented several police officers accused of crimes, and said it was likely the autopsy report that played a role in the grand jury’s decision. The report listed several contributing factors in his death, including his obesity, weak heart and asthma. “There were so many causes of death in the autopsy report,” he said. “You have to prove this guy caused his death.”

NO, YOU DO NOT have to prove anything. Indictment only; preponderance of evidence; NOT evidence indicating guilt beyond a reasonable doubt.  Garner did not die in his bed of asthma or heart disease.  He died on a sidewalk while being manhandled by cops and repeating that he couldn’t breathe.  That’s the evidence I see.

Because the Grand Jury is only looking for sufficient evidence to charge — and not to convict — you and I won’t generally get as much consideration as we would at trial; we won’t usually get to testify on our own behalf, or to bring exculpatory evidence.  But the police are treated differently.  Here’s some more prosecutor-speak, reported by the New York Times:

“In the majority of cases, defendants do not testify in front of a grand jury,” said James J. Culleton, who has represented police officers in high-profile police shootings, including those of Amadou Diallo and Sean Bell. But police cases are different, he said. “The justification defense — put it in front of the grand jury,” he said. “I believe the grand jury wants to hear what a police officer has to say. What happened? What was happening around him at the time?”

Sure enough, in both the Michael Brown shooting and the Eric Garner chokehold case, the officers were allowed to present extensive testimony, exculpatory evidence, and even evidence concerning the dead subjects in these cases; for Michael Brown, it was video of his behavior in a store earlier that day; for Eric Garner, it was information about his fragile health. So why don’t the rest of us get to testify on our own behalf to a Grand Jury? Should police cases be different?  I don’t think so.

And then you have this analysis (also in prosecutor-speak), reported in USA Today:

“Intent. It’s everything,” former New York City prosecutor Zachary Johnson said. “In a case like this, there’s just the fact of a homicide — a man was killed by another man. Not all homicide is illegal.”

Well, Zachary, intent is NOT everything.  I know that as a lawyer you will be familiar with the phrase “criminally negligent homicide,” which is in fact an actual crime not involving intent:

Criminally negligent homicide is a Class E Felony in New York. In criminally negligent homicide, there is no intention of causing death or serious physical injury. Rather, it entails that one individual’s reckless, inattentive, negligent, or careless actions or inaction, accidentally causes the death of another individual. Criminally negligent homicide is punishable by up to four years in prison.

This is precisely what Judge Andrew Napolitano thinks should have applied in the Garner case:

“This is not Ferguson, Missouri.  This is not somebody wrestling for your gun, this is not where you shoot or be shot at. This is choking to death a… grossly obese person whose only crime was selling cigarettes without collecting taxes on them. This does not call for deadly force by any stretch of the imagination.”

Or, as Jon Stewart very bluntly put it:

“You know, I think what is so utterly depressing is that none of the ambiguities that existed in the Ferguson case exists in the Staten Island case. And yet the outcome is exactly the same: No crime, no trial, all harm; no foul. The coroner called it a homicide, the guy isn’t acting threatening, and we know that not through witness testimony from unreliable bystanders but because we are fucking watching it. Someone taped it.”

All the prosecutor-speak in the world doesn’t justify what we can see on tape with our own eyes. I’m in favor of the proposal to outfit police with body cameras, but what we really need to do is reform our Grand Jury procedures. Until we do that, body camera video will be as useless as the video of Eric Garner’s death.

See the video at The Guardian, here.