Conflicts of interest inhibit transparency in grand jury cases

Solidarity rally for Michael Brown in response to the Ferguson grand jury decision. Photo by Fibonacci Blue via Flickr (Creative Commons Attribution license)

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If a grand jury can “indict a ham sandwich,” why is it so rare in cases concerning police using deadly force that the grand jury believes there is “probable cause” to bring an officer to trial for a crime?

The Washington Post reported that “only 11 of the 65 officers charged in fatal shootings over the past decade were convicted.”

As reported by the New York Times and as surprise to many, a grand jury in Georgia indicted Officer Robert Olsen of the DeKalb County Police Department on six counts including the murder of an unarmed, unclothed Air Force veteran Anthony Hill, who suffered from post-traumatic stress.

According to United States Courts, there are two different types of juries: the grand jury and the trial jury, with both serving different functions. A trial jury decides whether a plaintiff is guilty of a crime. A grand jury decides if there is probable cause to charge a plaintiff with a crime and should go to trial.

The main difference between the juries that has lead to many heated debates is that all proceedings by grand juries happen behind closed doors. Trials on the other hand are open to the public with only jury deliberations conducted in private.

Different from trial cases, in grand jury cases the defendants and their lawyers are usually not allowed to appear in front of the grand jury. However, Georgia is the only state where police officers are given special privileges and are indeed allowed to address the grand jury and provide an unchallenged statement, as stated by the New York Times.

These special privileges are given to police officers due to the nature of their job, which allows them to fire their weapons and, if deemed necessary, to shoot to kill.

“With regard to police officers, they have “qualified immunity,” Seema Iyer, a practicing attorney and legal analyst, said to MSNCBC. “A police officer is allowed to use deadly force in many more circumstances than a lay person, something the grand jury is instructed on.”

The fact that police officers are able to speak to the grand jury without being cross-examined, can influence the grand jury’s decision in favor of the police officer more than in a trial. Additionally, prosecutors can present the case the way they want.

The district attorney is the only one to present the case to the grand jury and based on the evidence he provides, they decide whether to indict the defendant or send him to trial.

“District attorneys now have so much influence on grand juries that by and large they could get them to ‘indict a ham sandwich,’” former Chief Judge of the New York Appeal Court said, as reported by New York Daily News. “Most of the time when you want to get a prosecution and you want to indict, you use the grand jury and you can get the damndest kind of indictments.”

It is often believed by the public that cases involving deadly force used by police officers always go to the grand jury. However, there is no such law; it simply is common practice according to Iyer.

A case can be made for grand juries handling these case as it might be harder to find people willing to work for the force if incidents involving deadly force went to trial since juries and all proceedings excluding jury deliberations would be public. However, that should not preclude the need for a fair trial.

It is impossible for the public to fully understand what it is like to be in a situation where an officer feels their own life or the life of others may be in danger.

Therefore it is even more important that hearings and the proceedings that lead to the decision to charge someone with a crime are open to the public. Not only would it provide the plaintiffs the chance to testify and state their case, but witness statements and cross-examinations would be open to the public.

This transparency of the proceedings leading to indictment or freedom is necessary as families of both victims and defendants have the right to make their own judgement based on the provided evidence.

They may not agree with the outcome, but they have a better chance for understanding the decision than if all proceedings happen behind closed doors.

It could be argued that cases involving deadly force by police officers are decided by a grand jury to protect the officers. However, an angry and frustrated public could be even more harmful.

After the grand jury decided not to indict officer Darren Wilson in the shooting death of Michael Brown in August 2014, riots broke out in Ferguson, MO, and protests took place all over the country.

In Michael Brown’s case, prosecutor Robert McCulloch made all the evidence open to the public after the grand jury came to its decision, a rare move to try avoid further escalations, as reported by NPR.

Maybe the reactions by the public to the announcement would have been less violent and extreme if there would have been more transparency right from the start.

In California, Gov. Jerry Brown signed measure SB 227 into law that prohibits grand juries from handling cases involving excessive or deadly force by police officers, according to the Los Angeles Times.

“One doesn’t have to be a lawyer to understand why SB 227 makes sense,” Sen. Holly Mitchell said, as reported by the LA Times. “The use of the criminal grand jury process, and the refusal to indict as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system.”

This suspicion is understandable, especially when considering the relationship between the prosecutor, who presents the case to the grand jury, and the police.

“A police department is an agency of the prosecutor’s office,” Iyer said. “There is an inherent conflict of interest. Imagine trying to indict your boss, colleague or sibling.”

A prosecutor and the grand jury may have the best intentions and want to make a fair decision, but the circumstances of grand jury proceedings and the connection between prosecutors and law enforcement give reason to believe that the victims are not always given the trial they deserve.

The verdict should be just and similarly situated people should be treated the same. When police officers are given special treatment in deadly force cases, especially when race might have played a role, the public will rightfully be suspicious.

Fortunately, due to technological advances and social media, cases become more transparent and pressure grows to assure a fair trial.

“In the past, an officer’s word was not challenged,” Philip M. Stinson, a criminologist at Bowling Green State University who studies arrests of officers, said to The Washington Post. “If anything has shifted this year, it’s that. They are facing the kind of scrutiny the rest of us face when we kill someone.”

If there is an exemption made whenever an officer might have feared for his life, it is too easy for officers to say just that. What would change if police officers in the U.S. where not given the right to “shoot to kill”.

Officers are trained to target a suspect’s center instead of just shooting to stop, as reported by the Huffington Post.

The Washington Post reported that shootings involving police officers had fallen by nearly 50 percent after the Las Vegas police ordered officers in 2009 to make “the sanctity of human life” their priority.

It clearly shows that it is possible to drastically reduce deadly force used by police officers if they are trained differently.

More often than not, it is the system that fails to prepare police better for the situations they encounter while fulfilling their duty.

Therefore, the question is not whether grand juries should rule over cases involving deadly force used by police officers, but what can be done to prevent these killings in the first place?

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