California Grand Juries and other things that make me uneasy

Hello, old friend.

So, about 8 months ago, I stopped writing here. I wrote a piece about Freddie Gray and halted publishing future blog posts. It was a painful thing to read about and an excruciating thing to write about. I’m back because I’m thinking something through that requires more than a Facebook paragraph, so bear with me.

So the short version is as follows: In August, Gov. Brown of California signed into law a measure that ended the use of grand jury proceedings in California in police deadly force cases. I missed it and I think it’s interesting, so I'm writing about it now.

To be clear, here’s the Wikipedia definition of a grand jury,

"A grand jury is a legal body that is empowered to conduct official proceedings to investigate potential criminal conduct and to determine whether criminal charges should be brought. A grand jury may compel the production of documents and may compel the sworn testimony of witnesses to appear before it."

Grand juries exist largely to show that a prosecutor is capable of proving that a defendant committed a crime. At their best, they weed out cases that shouldn't go to trial. A large majority of cases that go to grand jury will go to trial. There are no defense attorneys in a grand jury proceeding, so this is an easy burden for prosecutors to overcome.

However, in some recent high profile cases, grand juries have failed to indict police officers, essentially saying “No, you do not have enough evidence to indict the police officer for committing a crime.”  This upsets people who believe that the police officer(s) in question committed a crime.

Many states allow prosecutors to bring cases to grand juries. Some people view this as a way to ensure that the police officer in question won’t get indicted, while taking the pressure off of the prosecutors office to take the case to trial. If the grand jury fails to indict, then the case cannot be taken to trial.

The California Law makes me uneasy because:

1) Reducing opportunities to to ward off unwinnable cases makes me upset. Yes, I post a lot about police misconduct and behavior I view to be police misconduct, but it doesn’t mean that we should strip their rights away as defendants.  This might be unpopular in some circles, but accused police are defendants, too. If we take rights and opportunities away from accused police, why not John Doe defendant. This isn’t really a slippery slope, it’s the next stop on the train.

2) I don’t think that this change in law solves the problem that it purports to solve. If we think that prosecutors are losing in the grand jury because they are “not trying to win”, then trial isn’t going to solve that problem. I don’t think that it’s unfair to assume that because prosecutors offices depend heavily on police to investigate crimes, that they might be unwilling to convict people that they work hand in hand with. I don’t think that this bill solves that problem. It would also be difficult to solve that problem. Also, maybe I’m naïve, but lawyers HATE losing cases. I don’t think that prosecutors intentionally losing at the grand jury level happens that often. I can imagine that a prosecutor’s heart may not be into it in the same way that they would if they were prosecuting a serial rapist, for example.

3) If we think that prosecutors are trying and failing to convince the average person that a police officer committed an illegal action, what do you think is going to happen in trial?  Now, there’s a defense attorney, ready with arguments, witnesses and objections. If prosecutors aren’t able to indict, how will they possibly be expected to convict?

So what do you think? Am I misguided here?



The changes, in full:

"THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 917 of the Penal Code is amended to read:
917. (a) The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.
(b) Except as provided in Section 918, the grand jury shall not inquire into an offense that involves a shooting or use of excessive force by a peace officer described in Section 830.1, subdivision (a) of Section 830.2, or Section 830.39, that led to the death of a person being detained or arrested by the peace officer pursuant to Section 836.


SEC. 2. Section 919 of the Penal Code is amended to read:
919. (a) The grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted.
(b) The grand jury shall inquire into the condition and management of the public prisons within the county.
(c) The grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county. Except as provided in Section 918, this subdivision does not apply to misconduct that involves a shooting or use of excessive force by a peace officer described in Section 830.1, subdivision (a) of Section 830.2, or Section 830.39, that led to the death of a person being detained or arrested by the peace officer pursuant to Section 836."