The Michael Brown and Eric Garner cases focused attention on police departments and their relationships with the minority communities that they serve. After the police officers involved in those incidents were not indicted on criminal charges, those cases also drew attention to the grand jury process.
In response to this attention, the St. Louis County Prosecutor Robert P. McCulloch chose to release redacted transcripts of testimony and other evidence heard by the grand jurors, who refused to indict Officer Darren Wilson.
Editor’s note: For a view on the redacted testimony and McCulloch’s instructions, see Caleb Mason’s February 24 Viewpoint, “Was the Ferguson Grand Jury Misled?”
In contrast, Daniel Donovan, the Richmond County (New York) prosecutor, released only a limited set of details about the evidence the grand jury heard in the Eric Garner case. The Legal Aid Society is currently fighting for the disclosure of the grand jury transcripts.
One reason for the different approaches to the release of grand jury evidence in these two cases is the fact that New York has some of the strictest rules on the disclosure of grand jury evidence—but those rules may be about to change.
The public outrage over the “no true bill” in the Eric Garner case and the secrecy surrounding grand jury proceedings has led to serious talk at the highest levels of New York State government about grand jury reform.
For example, New York Chief Judge Jonathan Lippman said in his 2015 state of the judiciary report that the perception that prosecutors can’t objectively present to the grand jury cases arising out of police-civilian encounters “clearly can undermine public trust and confidence in the justice system.”
To address this concern, Lippman recommends that cases involving allegations of homicide or felony assault arising out of police-civilian encounters be directly presided over by a judge.
Lippman also discusses the lack of transparency over grand jury proceedings, particularly those in which the grand jury votes against issuing an indictment. He proposes lifting “the veil of secrecy” with a presumption in favor of disclosure of the records of grand jury proceedings that have not resulted in charges in cases of “significant public interest.”
The New York grand jury process may be in need of reform. But the changes proposed by Lippman are very narrow in scope and impact. If enacted, those changes would make grand jury proceedings more transparent and reduce the prosecutor’s power and influence over the proceedings—but only in a small number of cases.
Despite the publicity over cases involving charges against police officers for assaulting or killing civilians, such cases are rare. Similarly, cases in which grand juries don’t issue indictments are also uncommon.
So why is the focus of grand jury reform directed at these unusual situations?
Legislators, the judiciary and the bar should instead focus on the grand jury system in general, starting with the safeguards already in place to protect the system’s integrity and whether these safeguards are being used to their full potential.
For instance, one of the main criticisms of grand juries is that they’re puppets who simply do what prosecutors want them to do. Hence, the “myth” that grand juries would indict even a ham sandwich if asked to do so.
Yes, the prosecutor has control over what testimony and other evidence is presented to a grand jury. The prosecutor also instructs the grand jurors on the applicable law.
But if the grand jury does return an indictment, these closed door proceedings do get reviewed.
It’s standard procedure for the defense to make a motion challenging the sufficiency of the evidence before the grand jury. To rule on such a motion, a judge reviews the grand jury minutes in camera to determine whether there was sufficient evidence presented to support the charges or any improprieties during the presentation, such as misstatements of the applicable law.
If there were any defects in a grand jury presentation, the judge is in a position to address them, including dismissing the charges.
However, in my experience, judges almost never rule for the defense on such motions.
Although I’d like to think that most indictments would withstand judicial scrutiny, it’s hard to believe that all grand jury presentations are flawless.
So why do judges so rarely overturn indictments?
Are judges properly trained on how to handle motions challenging the sufficiency of evidence before a grand jury? Do they give grand jury minutes just a cursory review and simply defer to the prosecution? Do they assume justice will be done at the trial stage, where the prosecution must satisfy a higher burden of proof?
Perhaps Justice Lippman should focus his attention on other members of the judiciary and take steps to ensure that they’re adequately and properly reviewing grand jury minutes and taking appropriate steps to address any defects or improprieties in grand jury proceedings.
Granted, the existing safeguards may not be sufficient.
For example, grand jury proceedings aren’t reviewed if no indictment is issued and maybe they should be, at least under certain circumstances.
Bottom line: The public would be better served if the focus of grand jury reform was shifted to changes that would impact the majority of cases, not only rare, high profiles ones.
After all, key criticisms of the grand jury system—its secrecy and prosecutorial power—apply to all cases.
High profiles cases such as those involving alleged police misconduct are useful for shining a spotlight on flaws or problems with the criminal justice system as a whole, including the grand jury process. However, meaningful reform needs to look beyond these cases.
In addition, creating special rules for cases against police officers may serve to increase distrust of grand jury proceedings and reinforce the perception that the process is stacked against most defendants.
Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.