In the wake of the recent crisis following the Grand Jury’s decision in Ferguson, Missouri and of course, the Grand Jury’s decision in Staten Island New York, I am usually asked by friends and family to give my opinion as a former prosecutor and as a Chicago criminal defense attorney.  Perhaps the most common question I have gotten is this: What in the world was the Grand Jury thinking?  My answer to this question is always the same: The Grand Jury is not to blame!

Getting an indictment from a grand jury is one of the easiest things a prosecutor can do.  In my early days as a prosecutor, a veteran Chicago defense attorney once attempted to simplify for me, how easy it is for prosecutors to secure an indictment from a grand jury by noting, albeit jokingly, that prosecutors could persuade a grand jury to indict a ham sandwich.

That prosecutors around the United States have it easy in obtaining and securing grand jury indictments is no coincidence.  Rather, understanding the role that a grand jury plays in the criminal justice system will certainly shed light on why prosecutors generally succeed in securing grand jury indictments.

First, a grand jury is different from a regular criminal jury.   Unlike the regular criminal jury that has to determine the guilt or innocence of a defendant, the grand jury’s purpose is only to determine whether a suspect is to be charged with a crime.  Put another way, grand juries have to determine if there is probable cause that a crime has been committed.  This probable cause standard can be met usually, by showing the very minimal when it comes to evidence.  Consequently, apart from a judge, the grand jury acts as one of the gate keepers into the criminal justice system.

From the outset, the entire grand jury process is tipped against a suspect.  Unlike most parts of a criminal proceeding that remain public, grand juries meet in secret.  Beyond this secrecy, things start to get much worse for a suspect when you consider that in a grand jury proceeding, a suspect does not have the right to defend his or herself and a suspect’s lawyer cannot cross examine prosecution witnesses or challenge any evidence for that matter. To put it bluntly, suspects are completely sidelined during the secret grand jury proceedings.

A recent article from Thinkprogress highlighted the power that prosecutors have in grand jury proceedings when it noted that Justice Antonin Scalia, an influential associate judge on the United States Supreme Court, had been quoted, in a 1992 court case regarding grand juries, as saying:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the
prosecutor…neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Without the suspect’s say or input, a prosecutor generally has free reign to influence a grand jury’s final decision.  For instance, a prosecutor decides without objection from anyone—since it is secret—what evidence to put forth before the jury.  As a result, most prosecutors only use the testimony of the victim and other witnesses who favor a prosecution’s case or the victim’s narrative.  A prosecutor is not required at the grand jury junction to disclose to the grand jurors or anyone for that matter, any flaws in the prosecution’s case.  And there is nothing anyone can do, not even the suspect, who if you recall, isn’t part of the show.

So if grand jury indictments are so easy why then did the prosecutors in Ferguson and Staten Island fail to secure indictments? The answer is actually simple and allow me to put it in bold:

THE PROSECUTORS IN FERGUSON AND IN STATEN ISLAND MADE A FEW GRAND STRATEGIC “MISTAKES”

In both Ferguson and Staten Island, the critical “mistake” in strategy was to call the police officers to testify.  Essentially, the prosecutors did what prosecutors never do: they allowed the suspects in each case to explain away their stories.  But it went further, for instance, in Ferguson, the prosecutor called witnesses whose stories highlighted major flaws in the victim’s narrative.  If prosecutors followed the example of the Ferguson and Staten Island prosecutors, then, the amount of grand jury indictments within the United States, would dramatically reduce.

The implication of this grand “mistake” in strategy is simple: a grand jury under such circumstances, would inevitably supplant a regular criminal jury.  The process of gate keeping will expand to involve comparing diverging testimonies and weighing the suspect’s own side of the story.  As a result, the adversarial nature of a criminal proceeding will kick in and ultimately some grand jurors will have their own opinions as to what happened.  And who can blame them? Don’t we as humans have different experiences in life which lead us to different opinions?

SO IF THE GRAND JURY IS NOT TO BLAME, THEN WHO IS?

The Ferguson and Staten Island cases have triggered the current national debate on the relationship of the police with minority groups and more generally, on issues relating to race relations in America.  These were big cases that involved historically sensitive issues as it relates to race in America.  In such instances, those in position of authority have a duty to ensure that the entire process is fair.  Anyone and everyone has a right to dispute whether or not Officer Wilson was justified or unjustified in the shooting death of Michael Brown.  However, very few people will dispute that in reaching the ultimate answer to such a question, the process must be fair.  In ensuring this notion of fairness, the role of a special prosecutor becomes important.

THE NEED FOR A SPECIAL PROSECUTOR

In most states, including Missouri and New York, there is a procedure in place involving the appointment of a special prosecutor to handle certain cases.  Such prosecutors are usually appointed in situations where there is a conflict of interest.  In the Ferguson and Staten Island cases, there was inherently a conflict because the prosecutors decided to prosecute members of police departments with whom they work in tandem.  In such situations, the likelihood of bias in favor of such a police officer is possible.

The solution in such instances should be simple: appoint a special prosecutor!  A special prosecutor usually, will not have the relationships that most prosecuting agencies share with police officers.  As a result, such a special prosecutor would be expected to be fair and in turn the process will be deemed fair regardless of the results.

Hot button crisis touching on race and police brutality tend to reverse the cultural progress the United States has made over the years and to diminish the United States’ role as one of the largest exporters of the rule of law.   Thus, those responsible have a duty to ensure the appointment of special prosecutors in such cases or state legislatures should be tasked with enacting laws that require the appointment of special prosecutors in criminal cases involving police brutality and excessive force.  Simply leaving it up to prosecutors who work with these police officers is inappropriate.  After all, and as the saying goes, Caesar’s wife must be above suspicion.