An eager reader suggests that, given the headlines surrounding the grand jury non-indictments of police officers involved in the deaths of suspects in Ferguson and Staten Island, we could benefit from a better understanding of how grand juries work.
For expertise, I turn to Pennington County State's Attorney Mark Vargo and Rapid City attorney Patrick Duffy. Vargo has worked with grand juries as a state and federal prosecutor. He also served as a grand juror for six months. Defense attorneys are generally not directly involved in grand jury proceedings, but Duffy has counseled witnesses and defendants appearing before grand juries. Duffy regularly reviews grand jury transcripts of clients indicted by that process.
In South Dakota, the grand jury is a panel of six to ten citizens convened to determine whether the state should bring charges against a suspect. If you are registered to vote or licensed to drive and 18 or older, you could be a grand juror.
The grand jury differs from the petit jury (ah, French! "small" jury, the trial jury we are used to seeing in the news) in its standard for action. The grand jury, in Vargo's words, must "evaluate whether there is probable cause that an offense was committed and that the person to be charged is the one responsible." Vargo says police use the same standard in warrantless arrests: police arrest and grand juries indict when it is "more likely than not" that a suspect has committed a crime. To convict, petit juries must clear the much higher bar of guilt beyond a reasonable doubt.
Indictment is also requires fewer votes than conviction. A grand jury may indict on less than unanimity. Six or more jurors must vote to indict.
Unlike the petit jury, the grand jury is not an adversarial setting. No defense attorney or judge is present. Neither is the defendant. Witnesses face questions, but not the cross-examination by opposing attorneys. A good prosecutor, says Vargo, presents both the strengths and weaknesses of the case.
Conducted properly, the grand jury weeds out weak cases that would not stand up in court. The grand jury also checks the state's prosecutorial power. As Duffy says, the grand jury "protects us from baseless charges brought by law enforcement." It spares innocent individuals the stigma of being charged with a crime, as well as the financial cost and strain of a criminal trial.
The secrecy of the grand jury is a necessary part of that protection. However, Duffy says that secrecy is also a basic flaw in the now well-known grand jury investigations in Ferguson and Staten Island. "Whenever an agent of the state kills a citizen," Duffy contends, "the level of confidence society needs to have in any conclusion about guilt or innocence is obviously very high." Duffy says matters like these police killings should unfold publicly, before a petit jury, "because sometimes a public trial is the only way for society to have complete confidence in the result."
The rage around the Ferguson and Staten Island non-indictments revolves around the perception that the criminal justice system is rigged for cops and against blacks and other minorities. With respect to police, there may be little we can do with the grand jury system to address such perceptions. South Dakota grand juries follow no special procedures in cases involving law enforcement officials. Vargo says such special rules for any defendant would be inappropriate. The only likely difference in a grand jury's handling of a case involving a police officer would be the recusal of a prosecutor whose relationship with that police officer's department "could jeopardize the charging decision or the public's confidence therein." However, Vargo says the number of cases coming to grand juries with officers as potential defendants is "exceedingly low." Shootings by police officers are "frequently investigated by the Division of Criminal Investigation rather than a local agency."
Nor is it easy to build into the grand jury some sort of racial justice guarantee. The grand jury should reflect its community as accurately as a petit jury does. Duffy says properly reflecting the community will increase public confidence in grand jury decisions. But prosecutors don't get to pick grand jurors by color, income, or any other criterion. The randomly selected grand jury pool only reflects the folks who register to vote or get drivers licenses. In Pennington County, Duffy says getting juries that "look like" the community is complicated by the large population of American Indians who float between Rapid City, Pine Ridge, and Rosebud.
Besides, the public cannot take full confidence in the representativeness of any one grand jury, since the identities of grand jurors, like the proceedings, are secret.
Duffy says the best defense against courthouse prejudice is effective attorneys playing their part in an effective criminal justice system:
The public process of trial by jury, when conducted by competent counsel, is the ultimate safeguard of our rights. For the most part, the better the lawyers, prosecution and defense, who try the case, the better the quality of the justice that will emerge.
Great trials conducted by great trial lawyers before great judges produce great justice [Patrick Duffy, e-mail, 2014.12.08].
Vargo says a grand jury should respond to racial or ethnic prejudice only when it is an element or motive in a crime charged. Grand juries "should be (and, I think, generally are) focused on the proof against a defendant." If grand juries are indeed failing black and Indian victims of crime or shielding white police officers from proper prosecution, the solution does not lie in changing the grand jury system; the solution lies in creating better citizens who can better carry out their sole duty as grand jurors—in Vargo's words, "to make a finding as to probable cause."
Vargo sees two important lessons for all citizens in the discussion of the Ferguson and Staten Island cases:
Perhaps the most important lesson for all of us is in the difficult task of keeping an open mind. Once the narrative on each case came out, there seemed to be precious few people changing their minds. And yet the evidence available to the public grew (and changed) almost daily.
The other lesson (closely related) is to stay informed. Even among those who pay attention to the news, I would wager that less than 10% of people know what the name of the charge was, much less the elements, for the homicide count that the officers would have been facing. In fact, I just spent 20 minutes looking for a news report that listed the charges and could not find one unless you count the comments sections. If you don’t know that, how can you have an opinion about whether he should have been indicted? [Mark Vargo, e-mail, 2014.12.09]
The grand jury system, like the criminal justice system, is what we make it. It depends on well-educated, open-minded citizens committed to truth and the rule of law.25 comments