Monday, December 22, 2014

The case for grand jury abolition

Jim Harrington from the Texas Civil Rights Project authored a column in the SA Express-News arguing for abolition of grand juries in Texas, a suggestion your correspondent also recently proposed. The article opened thusly:
The United States has had to discard anachronistic institutions throughout its history, and it is now time to bury another — the grand jury. Most other countries based on English common law long ago jettisoned this unworkable relic of the past. And only about half of the states in the nation still use grand juries.

The Ferguson and Staten Island grand juries that recently cleared police in the killings of Michael Brown and Eric Garner, respectively, underline starkly how perverted the grand jury system has become. There is no way to reform the system; all cries to reform it are “pie in the sky” and inherently doomed. Grand jury reform is impossible. Abolishment is the only viable alternative if we want a more just system.

The grand jury originally had two functions. One was to shield people against the arbitrary government power. The other was where individual citizens brought criminal cases they wished to prosecute against someone else, and the grand jury would give the go ahead or not. This was before the institutional development of district attorneys and prosecutors in our criminal justice system.

In modern times, the grand jury has become an irrepressible tool of the district attorney. With the exception of a few blips here and there, prosecutors manipulate and bend the grand jury to their will. After all, the prosecutor tells the grand jurors what needs to be done “in the interest of justice” and presents and tailors the evidence and witnesses accordingly — all in a secret, non-transparent proceeding, without the customary due process protections for the accused. As the saying goes, any prosecutor, who so desires, can “indict a ham sandwich.” An overstatement, perhaps, but close to the truth.

The American grand jury has become the new “Star Chamber,” which was the English monarchy’s secret court system that wrought injustice and abuse of power until abolished by Parliament in 1641.

The American grand jury is its reincarnation, and should meet similar demise.

Especially in instances of police violence, the grand jury can never function with justice. District attorneys are beholden to the police to work up cases they prosecute and upon which they conduct their law and order campaigns for re-election. It is an understandable symbiotic relationship, but one which always will misfire in allegations of police violence or abuse.

Moreover, police unions will put their votes and money behind district attorney candidates who support them, not prosecute them.

Grand juries have become a hand-washing machination for prosecutors. They hide behind a grand jury decision in favor of the police, even though they have manipulated its inevitable outcome. 
See also similar arguments made in Slate (Dec. 9) regarding why grand juries should be abolished. Others argue for keeping them but requiring greater transparency. (If we're going to keep them, personally I think recordings or transcripts should become public records once the grand jury's term ends.)

In a related story, the Houston Chronicle reported Dec. 19 that "Hispanic representation on Harris County grand juries far below population." The paper found that not only were Hispanics and Asians underrepresented but people from law enforcement fields were overrepresented. "The Chronicle found that 58 percent of grand juries had at least one person with law enforcement or legal experience. Almost a third of grand juries had two people meeting that criteria."


Anonymous said...

Typical left wing claptrap and hyperbole from Harrington.

Gritsforbreakfast said...

9:14, Please quote back the hyperbolic part and rebut it. And in general, try making arguments instead of smears; your comments will matter more.

Anonymous said...

The American grand jury has become the new “Star Chamber,” for starters.

The rebuttal is self evident for anyone with a modicum of common sense.

KBCraig said...

It seems to me that we need to keep grand juries, and abolish district attorneys and professional prosecutors.

Gritsforbreakfast said...

So a group hand-picked by a judge, meeting in secret has no analogy to historic critiques of the "star chamber"? The term is used more generically these days to describe secret government proceedings that abuse their power, as I'm sure you'd acknowledge in any other setting where you weren't anonymously trolling.

Also why do you say this is a "left wing" critique? Folks on the right are making the same arguments and using the same rhetoric.

John David Galt said...

I beg to differ. Not because the grand jury does much of anything to prevent overreach by prosecutors, as was its original purpose, but because we now have a national epidemic of police using unnecessary force, and the only thing that will stop it is to make police who misbehave answerable to their victims. That means giving victims the right to prosecute cases themselves (since prosecutors and police are either the same people, or in bed with each other, in every state).

Let's revive that right. Britain still allows it and it isn't doing any harm there.

Anonymous said...

Here's a former federal prosecutor using the term "star chamber" to describe state grand juries in Wisconsin.

Anonymous said...

There's really not much to rebut in Harrington's biased diatribe. He cites absolutely no authority or statistics in support of his rant. If I hear one more commentator mention the "symbiotic relationship between prosecutors and police," I think I'm going to puke. If the liberal media and professional commentariat had any idea how often prosecutors and police are at odds over the merits of cases, discovery issues, Brady, police conduct and tactics, etc., they'd probably be shocked. I wonder if Harrington has ever actually dealt with a grand jury...Ever? This whole Ferguson/Eric Garner media manufactured controversy has spun out a narrative that is so completely at odds with reality and rational thought that I'm cynical about the future of our nation. But then again, this is the same country that elected Barack Obama, twice, so I guess there's not a lot more that really needs to be said.

Anonymous said...

"The Chronicle found that 58 percent of grand juries had at least one person with law enforcement or legal experience. Almost a third of grand juries had two people meeting that criteria."

Seems like a variant on the Birthday Problem ( statistics: how many people do you need in a room to get a 50% chance of a shared birthday? A mere 23, which surprises most people.

I'm curious: in a random selection of n people how many you need to get before the criteria of "one person with legal or law enforcement experience" is met? Without comparison to the overall elgible pool (voters over 18?) this may be an unfortunate example of lies, damn lies, and statistics. It's possible they are over-represented (and it wouldn't surprise me at all), but "58%" is not a useful metric.

The one time I served on a grand jury (before law school, but it was an experience that made me look to that as a career!) we had a lawyer as the foreman. He got pulled into the pool just like the rest of us - off the voter rolls in Athens, GA. If I recall correctly, he did trusts and estates law. His legal education did not, as far as I could tell at the time, result in any pro-prosecution bias.

Anonymous said...

Anon 12/22/2014 10:38:00 AM;
I suspect that those who have never been an officer trying to get charges accepted on a criminal they just arrested or a prosecutor trying a case over the phone with said officer working the late shift on intake really have no idea what they are talking about when they drag out that whole malarkey about symbiotic relationships. You could extend your comments to the ADA's working public integrity who are "on a mission" to find "bad cops" even if they have to bend facts to fit their narrative, the higher up folks figuring it amounts to throwing the public a bone to appease them that their fears of evil doing cops are stopped at all costs, due process be damned.

The reverse of the equation is that in smaller towns, the smaller number of ADA's and officers are far more likely to know each other and wear more hats so there won't be a specialty integrity unit that only prosecutes cops accused of misconduct. Of course they work together and after years of familiarity with people, anyone is going to adjust their narrative to some degree to fit the facts at hand. The problem for the hand wringers is that the facts virtually always support the official side of the story, not the burglary suspect shot at night or the robbery suspect shot while fleeing the scene of the crime.

That is what kills their claims of epidemic amounts of force used, said force being reflective of the force used by the suspects which has, and will continue, to grow as idiots empower the crooks in a misguided belief that they are merely acting on a lack of opportunity or serving as modern day Robin Hood types. Criminals start using automatic weapons, body armor and explosives is what led to police being forced to enhance their own responses, the days of expecting some lone patrolman taking on a gang of cartel militia long gone.

Anonymous said...

12:34, you can change the system in any number of ways but the reality is that police and lawyers tend to honor the subpoenas sent much more frequently than members of certain ethnic backgrounds even for judges that use the petit juror system. As such, they are more likely to be picked because they are there, just as the many in this community illegally are not called or think it is a trick to deport them, the mistrust in the system preventing a fair representation from the starting gate. The Chronicle spends more time looking for a statistical angle than they do writing their stories these days, sensationalism sells papers in the dying world of print media.

Paul-United Kingdom said...

In reply to John David Galt, I should point out that where there is death or serious injury and there is police involvement. Then there is an investigation by the Independent Police Complaints Commission. All cases which involve deaths have to be heard at the corornors court and decided by a jury, which can return a verdict of unlawful homicide. (Even when we had the death penalty over here, the coroner had to hold a hearing with a jury for anyone who was executed)

Anonymous said...

Oh no!! Anonymous commentators. What's the blogosphere coming to? Overrun with filthy illegitimate anonymity.

Anonymous said...

"Anonymous said...

Oh no!! Anonymous commentators. What's the blogosphere coming to? Overrun with filthy illegitimate anonymity.

12/22/2014 11:53:00 PM"

Perhaps we should count Benjamin Franklin (aka Silence Dogood) as a "filthy, illegitimate, anonymous" entity.

Anonymous said...

Grand juries can also serve to protect the reputations of those who are falsely accused, especially in sexual assault cases where the accusations of serious criminality, especially alleged sexual wrongdoing, are often their own convictions in the high court of public opinion -- because the stigma is so severe, and because definitively proving innocence in a disputed sex case often is impossible. Trial by media destroys lives and reputations. If we eliminate grand juries and open up the process completely, then we need to rid ourselves of shield laws also. Or we need to provide anonymity for everyone prior to trial.

Anonymous said...

While some reading will be prompted to respond to the first loony sound bite that has nothing to do with nothing, I prefer to stay on point and reply to the question of the day with a what would you do? scenario and leave you with a fact. (Grits put the early-bird loon in his place allowing the rest of us to read on.)

If a right-wing nutjob calling himself 9:14AM, were to have invited us to attend a poker game in his man-cave for the last ten years (with all winnings being donated to a charity pulled from a hat) we would leave with less money than we arrived with, while feeling good vs broke and sad. Sadly, the political rants (pure horseshit) that he spouted as we played would rattle our brains for days afterwards.)

If we were to discover that he utilized his retirement fund and scratch off loot to buy and set up hidden cameras and had someone in the kitchen telling him who had what in their hand, we would call bullshit and either kick his old ass or discontinue playing poker with a cheater that says weird shit like - left wing & claptrap.

When the game is rigged, the outcome is inevitable 100% of the time, which is why the cheater(s) throw a hand or two in order to allow the smoke & mirrors to function. If you fail to stop playing poker with ol 9:14AM after you have learned that he's been robbing you, you are your own worst enemy and have no one but yourself to blame.

Thomas R. Griffith said...

Yes, the GJ process is Rigged from the jump and everyone has known about it for a long time. Yes, either it must be trashed in order to save the taxpayers millions of future pay-outs (forgetaboutit- bribes) due to the wrongful convictions obtained and to be obtained by rogue DAs and ADAs (or) it must be 100% overhauled. That includes everything from the (bugged) building that they meet in, the one-sided information display, the method used to pick certain people and paying them to play along. What's missing is the non-rogue DAs & ADAs taking a public stand and calling Bullshit on their counterparts that have tainted the good along with the bad. There are far more good than bad and it's time for them to do the right thing.

Allowing elected officials to set up and operate secrete courts is wrong, utilizing taxes to pay those personally chosen to participate is wrong, denying the accused the opportunity to appear with qualified legal assistance is wrong, thus, the game is definitely Rigged and wrong for Texas. Btw, Cheating at poker was the leading cause of Boot-Hill filling up and overflowing because those playing fair didn't take kindly to being fucked over.

Voting for candidates without giving a shit about their stance or plans for the future of a very important and needed justice system is the leading cause and reason why we are in this so-called claptrap. In essence, we the people are 100% responsible for the problems that we have been allowing. Don't like cheating? Then get off your butt and call Bullshit prior to entering the next ballot box.

Tune in next week when we discuss the second method utilized by police & the DAs INTAKE to obtain Indictments, having nothing to do with GJs and everything to do with the method in which they are disposed of. (Hint), it begins with a Not Guilty plea, a jury being impaneled, ending with their release due to a third way to plea. Plea Bargaining - Guilt & Innocence being trumped via Fake criminal defense and the desire to convict at all cost in a Team Effort. Anyone knowing a Judge that doesn't allow the court to be used by the rogue elements after a a jury is sworn in, is asked to share so that we all can applaud and recognize him / her for doing their jobs.

Anonymous said...

And the freak show continues....
Like flies to stank.

Anonymous said...

Some of us eventually became sick of the wall-to-wall lies that MSMBC, CNN, etc. told about the Michael Brown case. Brown was a thug who attacked a cop in the cop's car and grabbed his gun. The media distorted the truth and stoked the flames. So many of us wanted to make the police look bad, but some of us eventually got sick of all the lies.

Anonymous said...

Why is it not possible to teach feral young people that you obey laws, you don't loot, shoplift, steal, mug, rape or kill - and then expect to use the "race card". These protests result from lawbreaking and then blaming the officials who have the job of protecting the public.

Anonymous said...


I'm sure the family of Tamir Rice disagrees - as I do after watching the homicide of the 12 year old caused by the incompetence of a couple of cops and the poor policies of their police department.