What is this grand jury thing?

My mother visited me over the Thanksgiving holiday and amid the festivities we discussed current events, including the recent police brutality cases in which grand juries around the country have declined to indict officers who have killed unarmed citizens.  After the grand jury in Ferguson declined to indict the officer who fatally shot Mike Brown, an unarmed teenager, my mother and I watched television coverage of the protests that erupted across the country.  My mother turned to me and asked "so what is this grand jury anyway?"  Before I could respond she shouted "its rogue!"  After laughing at her interpretation of the legal process, I started to wonder how many people are completely confused as to what a grand jury is and why it seems to hold the key to justice in these cases.  I think its important for the public to understand the purpose and process of grand jury proceedings so that their frustration with these outcomes is not compounded by confusion as to what exactly happened.  Also, its impossible to bring about meaningful change if we have no idea what needs changing. The purpose of this blog post, therefore, is to explain the process of bringing criminal charges using a grand jury.  Nothing written in this post constitutes legal advice and should not be construed as such.  Additionally, reading this post does not create an attorney-client relationship.

The truth about the grand jury process, especially when trying to understand it in terms of cases scattered across the country, is that its not a simple concept and that the rules vary from state to state based on the laws.  The grand jury has its roots in the US Constitution and was originally put in place by this nation's forefathers to prevent the government from charging people with 'infamous' crimes without justification.  The idea is that if a jury of the accused person's peers gathers together and reviews the facts underlying the charge before the case against the person is allowed to proceed, the grand jury will protect citizens from being charged with crimes without evidence.  Although all of the grand jury laws in the various states have their basis in the Constitution, each state has adapted the grand jury process over time and there are major differences in the way that charges are brought in each state.

Let's start with what is generally alike in every state.  Everyone is familiar with an ordinary criminal jury, which usually has between nine and twelve members, sits to decide a single criminal case and has the duty of deciding whether a person is guilty beyond a reasonable doubt.  A grand jury is generally much larger, with as many as eighteen to twenty-three members who sit to decide several cases over a period of weeks or months.  Unlike a normal jury in a single criminal case, a the grand jury does not reach a final verdict of guilt in a case but only decides whether or not an accused person should be charged with a crime.  Grand juries are generally only used to charge felony crimes.  While the legal description of the standard that grand juries use varies from state to state, the general rule is that probable cause is the standard used to charge a person with a crime.  Probable cause simply means that based on the evidence presented a reasonable person would believe that the defendant probably committed the crime alleged.  Probably, meaning more likely than not or a 51% chance.  In a normal jury proceeding, evidence for both the state and the defendant are presented, but in grand jury proceedings the defense attorney either has no right to be present or must remain silent if she is allowed to be present.  The goal is getting the grand jury to render a true bill of indictment, or a decision to charge the accused person with the crime alleged.  For that reason, only the evidence that would convince a grand jury to indict is usually presented. The prosecutor, lead investigator or the jury foreperson (or a combination of these depending on the state) leads the proceedings, presenting all of the evidence, witnesses and applicable law and then asks the grand jury to indict the person or bring a particular felony charge against them.  Grand jury proceedings are generally secret, unless the prosecutor in her discretion and with approval from the court decides to  release certain portions of the proceedings or unless the public seeks approval from a judge to have the grand jury records released for good cause.  The similarities between grand jury proceedings across different states end here, and this is precisely where understanding the outcomes of these various police brutality cases becomes complicated.  Perhaps the most important piece of information to take away from this discussion, however, is that the question for the grand jury is not "whether the person accused is guilty of the suggested charge" its "whether the prosecutor has enough evidence to present at a trial of the accused person for the suggested charge."  This is why a grand jury's decision not to indict is generally an embarrassment to the prosecutor.  A prosecutor is not obligated to take a case to grand jury, after all one of the most extensive powers of a prosecutor is the power to decline to prosecute.  A prosecutor should only prosecute a case (including presenting it before a grand jury) if she believes that there is probable cause that a crime has been committed.  If a prosecutor believes that probable cause exists and decides to present a charge against an accused person to a grand jury, it is her job to clearly convey the basis of that probable cause to the grand jury so that the jury can confidently render a true bill of indictment.  A decision not to indict does not mean that a defendant is not guilty.  If a grand jury decides not to indict, it is because the prosecutor (or investigator) did not present enough evidence to convince the grand jury that in a later trial she could prove that the defendant probably committed the crime.

In New York where Eric Gardner was killed, for example, every felony case must be presented to a grand jury for indictment unless the defendant chooses to waive the indictment process.  If the grand jury does not indict, the case ends there and the prosecutor does not have the opportunity to bring the same charges before a grand jury again unless a judge finds that there was some flaw in the original grand jury proceedings.  This is in stark contrast to the law in North Carolina, where neither prosecutors, defense attorneys nor court reporters are present in the grand jury proceedings and if an indictment is not delivered the first time that a case is presented to a grand jury, the case may be presented to the grand jury again without implicating the double jeopardy clause.  These differences were demonstrated in the Jonathan Ferrell case, where a white officer shot Ferrell, an unarmed black man, after receiving a 911 call from a woman stating that Ferrell was knocking down her door.  Ferrell had just been involved in an accident where his car had overturned and was apparently seeking assistance.  He was not intoxicated.  A North Carolina grand jury initially did not indict the officer who shot Ferrell but after North Carolina Attorney General Roy Cooper insisted that the case be represented, the officer was indicted on a charge of voluntary manslaughter by a subsequent grand jury.  In North Carolina, hundreds of cases are presented to a grand jury in a week and an indictment is usually returned in every case.  In their analysis of the events in the Ferrell case, the Charlotte Observer noted that a Mecklenburg County grand jury heard evidence regarding 276 cases over a span of four days and returned indictments in each of the 276 cases.  This is in stark contrast to the Missouri grand jury led by Prosecutor Robert McCullough, who presented two months of evidence to the grand jury about whether there was probable cause to charge the officer who fatally shot Mike Brown.  The Florida case involving the shooting of unarmed teen Trayvon Martin while he walked home did not involve police brutality, however the fact that the Prosecutor in that case was able to bring charges on a bill of information and without a grand jury indictment, shows that there are many options for bringing felony charges which depend on state laws as shaped by state legislatures. 

Although the proceedings and legal options in the various cases are different, the repeated decision not to indict officers for use of deadly force in encounters that involve either petty crimes or no violation of law is one that stings communities across the nation.  It is hard to know whether the problem is that those of us who disagree with these decisions not to indict are sorely underrepresented in the population of the United States and therefore are not adequately represented among the members of these grand juries, or that the grand jury process itself is in need of major overhaul. In any event, I hope that the many protests and movements that have developed in reaction to these cases will focus their attention on state legislatures, as they hold the power to change indictment processes in state crimes.  I also hope that what evolves from the public outcry in response to the results in these cases will be genuine change that builds a better relationship between police and the communities they serve.