Guest AuthorThe recent grand jury cases examining the deaths of African-Americans Michael Brown and Eric Garner exonerated the police officers who killed them and ignited passionate demonstrations and recriminations from civil rights leaders alleging ingrained racism in our criminal justice system.
The debate since Brown’s killing in Ferguson, Mo., has centered on the training and behavior of cops in the streets, with hand-wringing about police brutality toward minorities and the militarization of police departments resulting from increased terrorism concerns.
In fact, President Barack Obama’s immediate reaction to the Ferguson grand jury decision was to propose paying for cameras to be worn by working police officers – more than 50,000 recording devices in all – to make police more accountable for their actions.
But the tape of Garner’s chokehold death in New York showed that video of police officers in the streets is not a “cure-all” to address alleged police brutality.
Instead, the discussion should focus on how these two cases demonstrate that our nation’s grand jury system fails to satisfy the central concern for fairness and rationality when deciding whether there is enough evidence to charge a crime, particularly when police officers are involved.
Applying common sense, anyone watching the graphic video of Garner’s chokehold death would have expected the prosecutor to lead the grand jury to find sufficient evidence of wrongdoing to ask a criminal jury, even at the misdemeanor level, to determine whether the police officer committed a crime.
Here’s the problem: In these particular cases, prosecutors who work daily with local police departments to fight crime basically were tasked with leading an investigation against their own clients to determine whether there was enough evidence to indict them.
Taking into account both the human interplay between prosecutor and police and the heavy CYA factors involved in protecting the reputation and credibility of local law enforcement, the resulting decision not to indict in both cases should have been expected.
Remember, prosecutors are politicians as well and have such large discretion in the grand jury room that former New York State Chief Judge Sol Wachtler, who at the time wanted to reform the grand jury system, famously said that prosecutors could get their grand juries to “indict a ham sandwich” if they wanted to.
In these cases, it was the opposite. This discretion allowed the use of contradictory evidence (which later on probably would have allowed their defense attorney to show “reasonable doubt”) to skew the presentation to the point of no indictment of all.
Also factor in that grand jury presentations are not adversarial, which in this age of instantaneous evidence, such as videos, also presents fundamental issues of fairness.
In the grand jury system, there’s no attorney presenting contradictory evidence in the best light for the defendant or victim at the hands of a police officer. Almost all defendants do not testify in their defense at this stage because anything they say to the grand jury can be used against them unless they are granted immunity, which again is at the discretion of the prosecutor.
In the 21st century, judges trained in the law, rather than grand jury members not versed in the intricacies of criminal law, should be determining whether there’s enough evidence to charge a defendant with a felony. Prosecutors should just prosecute cases or use their discretion to kick a case without the grand jury system’s pretense of judicial fairness coming into play.
Many states, including New York, have an adversarial preliminary hearing system, an initial trial of fact, where a criminal judge determines after hearing and seeing evidence whether the evidence warrants the case being advanced to felony trial. For the Brown and Garner cases, using this alternative and letting the judge decide the evidence is insufficient would have shown more fairness and had more credibility.
The Michael Brown and Eric Garner cases show that it’s time to retire the grand jury system and to begin reforming this country’s justice system. It’s a mistake, and even unfair, to couch the legacy of these cases solely in terms of the system’s inherent racism or police brutality.
Steven Kurlander blogs at Kurly’s Kommentary (stevenkurlander.com) and writes for Context Florida and The Huffington Post and can be found on Twitter @Kurlykomments. He lives in Monticello, N.Y. Column courtesy of Context Florida.
