As thousands of protesters nationwide ask how a pair of grand juries could decline to indict police officers in the deaths of two unarmed men, retired Judge LaDoris Cordell has another question: Why do we allow secret hearings that – at the very least – appear unfair?
And she’s not alone.
Widespread mistrust of the secret grand jury process has public officials, academics and protesters calling on states to create transparent oversight in how police shootings are investigated and how criminal charges are reviewed, particularly when they involve the death of an unarmed person. Many are focusing on grand jury proceedings that regularly produce criminal indictments, except when the accused is a police officer.
Grand juries “are misused and abused and basically an affront to our democratic process,” said Cordell, a retired Santa Clara County Superior Court judge who is now San Jose’s independent police auditor. “They are paid for by taxpayers, but you don’t hear what happens. … We can start in California. Legislators should say we don’t need grand juries.”
In many states, including California, the use of a grand jury is optional, with prosecutors allowed to decide whether to hold a public preliminary hearing in court before a judge or seek an indictment in private from their county’s grand jury. Neither decides guilt or innocence, but rather determines whether there is enough evidence to go to trial.
The shroud of secrecy surrounding grand juries was thrust into the spotlight recently when two panels in separate states declined to indict police officers in high-profile cases that have sparked national discussions and protests over police use of force, particularly against men of color.
New York’s top law enforcement official said the current system for investigating officer-involved deaths has reached a “crisis of confidence” among the public.
In July, Eric Garner was allegedly selling loose cigarettes when New York police attempted to arrest him in an incident captured by a bystander on video. Officer Daniel Pantaleo placed Garner, 43, in a choke hold. Garner is heard on the video repeating “I can’t breathe” before going limp.
A Staten Island grand jury found “no reasonable cause to vote an indictment,” Staten Island District Attorney Daniel Donovan said in a statement.
Ten days earlier, a St. Louis County grand jury declined to indict Ferguson police Officer Darren Wilson, who fatally shot unarmed 18-year-old Michael Brown after a confrontation in which eyewitnesses gave conflicting accounts.
While transcripts were released from the grand jury in Ferguson, little has been made public from the Garner case.
Two New York state lawmakers said they planned to introduce a bill that would allow transcripts and evidence presented to a grand jury to be made public in hopes of addressing widespread frustration with the lack of transparency.
New York Attorney General Eric Schneiderman asked Gov. Andrew Cuomo to give him the power to investigate officer-involved deaths of unarmed civilians, effectively removing that authority from district attorneys to restore faith in the justice system.
“A common thread in many of these cases is the belief of the victim’s family and others that the investigation of the death, and the decision whether to prosecute, have been improperly and unfairly influenced by the close working relationship between the county District Attorney and the police officers he or she works with and depends on every day,” Schneiderman wrote.
Others have argued that police use-of-force cases should be weighed only in public preliminary hearings, handled by independent prosecutors or referred to the federal government, similar to how federal civil rights cases are treated.
The U.S. Justice Department’s Civil Rights Division can step in when state authorities decline to prosecute police or state juries acquit them by bringing charges of knowingly and deliberately violating someone’s civil rights. Outgoing U.S. Attorney General Eric Holder is investigating both Brown’s and Garner’s cases for civil rights violations
While those federal investigations are ongoing, many are turning to the process that resulted in no criminal indictments in the first place.
“The system doesn’t work,” Alameda County Public Defender Brendon Woods said. “The indictment process for police officers is inherently flawed. It’s flawed because it’s done in secrecy, it’s flawed because – as we’ve seen – prosecutors in other states appear to not put forth their full effort in getting an indictment. It’s also flawed because people inherently, such as members of the grand jury, want to believe police officers.”
Police-involved shootings should not be referred to grand juries, Woods said. Instead, he said they should be reviewed in preliminary hearings open to the public, as a vast majority of cases in California already are.
“If It’s done in public, we get rid of that secrecy and people are watching to make sure all evidence is put forth and the judge decides whether the prosecutor has met the burden or not,” he said.
It’s extremely rare, Woods said, for criminal cases to end up in the grand jury in Alameda County. He said he can think of just a handful in recent years.
“I always prefer the preliminary hearing,” Woods said. “With that said, I understand why the grand jury process exists. It’s faster, there could be reasons to doing it in secret to protect a witness initially, or so that the person accused doesn’t know the charges are coming.”
In the 2009 shooting death of Oscar Grant, an unarmed black man who was shot in the back by a BART police officer on an Oakland train platform, the district attorney presented the case in a preliminary hearing, not to a grand jury. After a judge ruled the case had enough evidence to go to trial, former Officer Johannes Mehserle was found guilty of involuntary manslaughter. He served 11 months in prison, a light sentence that sparked angry protests and rioting.
Pictures of Grant, Brown and other young men were the background in the California state Capitol in August on the day Brown was buried as members of the California Legislative Black Caucus held a news conference to “denounce escalating violence against men of color by law enforcement.”
State Sen. Holly Mitchell, D-Los Angeles, who was chairwoman of the caucus at the time, fought back tears as she talked about her own teen son being singled out by law enforcement. Mitchell said she is deeply troubled by the lack of indictments in both the Brown and Garner cases and equally worried that few Americans seemed surprised, having already accepted that the legal process favors law enforcement.
The legislative black caucus will meet early next month to discuss potential legislation, including whether grand juries should be permitted to review cases involving police officers.
“I’m sure there will be a bevy of legislation when we get back,” Mitchell said. “I’m not delusional enough to think that one bill in the Senate will be a panacea. It’s not. We have work to do.”