Why Not Abolish the Grand Jury?
It is not sheer serendipity that former President, George W. Bush, recently
deemed the decision by the Staten Island Grand Jury not to indict the white
police officers responsible for the chokehold and death of Eric Garner, as "hard
to understand". Nor is it fortuitous that former Secretary of State, and former
First Lady Hillary Clinton, a possible 2016 Presidential candidate, should have
considered the US justice system "out of balance", and backed federal probes
into both the Ferguson and Staten Island cases. What is clear is the fact that
the US grand jury system, under the guidance of experienced prosecutors, has
miserably failed to ensure that the constitutional and civil rights of victims
minorities are legally protected.
Several decades ago, while a graduate student in the UK, I attended a lecture
by the late Lord Hailsham, (UK Lord Chancellor). I was initially taken aback,
when Hailsham, a man of extraordinary political, judicial, legal, parliamentary,
and even military experience, described the American legal system as “that great
museum of discarded English legal forms” … (page 38 of Hamlyn Revisited: The
British Legal System Today https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Hamlyn_Revisited_The_British_Legal_System_Today.pdf.
Fair to say, Hailsham was critical of the civil jury system. Like Prime
Minister Winston Churchill, he was born to an American mother. He was not,
however, simply asserting a strident anti-American bias, and seeking to torpedo
the typical claims of "American exceptionalism".Rather, he was offering a
typically robust analysis of twentieth century UK and comparative legal
development.
To illustrate Hailsham’s point as to the US being “that great museum of
discarded English legal forms”, the grand jury ceased to function in England in
1933, following enactment of the Administration of Justice (Miscellaneous
Provisions) Act 1933... ("An Act to abolish grand juries and amend the law as to
the presentment of indictments ..."). Grand juries were subsequently abolished
in their entirety in 1948, when the Criminal Justice Act 1948 ("An Act to
abolish penal servitude, hard labour ... the sentence of whipping ..."),
repealed a savings clause in the 1933 UK legislation retaining grand juries for
offences relating to officials abroad.
Today the United States remains the only country which still retains the
grand jury system. No other western country, with a common law tradition, e.g.
Canada, Australia, New Zealand, retains the grand jury.
Recent grand jury nullifications in Eric Garner's case in Staten Island, New
York, and in Michael Brown's case in Ferguson, Missouri, must therefore concern
any thoughtful, civic minded individual. Relatively widespread, popular
dissatisfaction among blacks, whites, minorities, males, females, young, old,
students, activists, and across the political spectrum – resulting and
culminating in occasional rioting and looting - following the grand jury failure
to indict police officer(s), who either intentionally or recklessly kill unarmed
civilians - also compels us to consider the usefulness of the current grand jury
system(s), and ask whether the time for its abolition has not come.
The refusal of the respective grand juries to return any sort of indictment
may well be, in itself, a most astounding indictment of the system.
Time was when we were told that “a grand jury would indict a ham sandwich”.
Perhaps, yes! But, not so, where the victim is black. Black lives clearly do
not matter in the context of the grand jury. (Curious, also, that the civilian
who shot the infamous police assault and murder of Eric Garner should allegedly
have recently been indicted by a grand jury in a different matter). We are yet
to see what the Cuyahoga County/Cleveland, Ohio, grand jury will do in the case
of the murder of 12 year old Tamir Rice by mis-advised, trigger happy white
Cleveland police - Tamir was shot 2 seconds after Police Officer Timothy Loehman
arrived on the scene. Loehman, barring a particular species of informal
affirmative action, and the aristocracy of skin color may well have been
rendered otherwise unemployable, based on his previous job performance and his
employment record.
Indeed, it is the case that the murder of unarmed black males by the police is
nothing new. We are, nevertheless, yet to see any sort of comprehensive
statistical data setting out the actual numbers of black men either killed by
police, nationally, or how many exactly are the victims of excessive use of
force by law enforcement. The WSJ even recently reported that hundreds of
killings are not reported in federal stats.
We do not yet know the actual costs of empanelling the grand juries in
Ferguson, including the resulting fall-out, and the Staten Island grand jury.
What we do know is that the enormous social, economic and financial costs were
quite foreseeable.
Most prosecutors are experienced trial lawyers. They are quite capable of
indicting any offender, picking up the pieces and bringing the matter to either
settlement or speedy trial. They indict every day throughout this country,
without any need for a grand jury. They try cases every day.
It is therefore clear that the grand jury, based on Staten Island and
Ferguson, except where intended to give the prosecutor a measure of political
cover, is a useless sham and an anachronism, which ought to be abolished
forthwith. Its mandatory secrecy militates against transparency, accountability
and the Rule of Law in a democracy. How do we reconcile the mandatory secrecy
of grand jury proceedings with the need for transparency and accountability?
(Belated, ex-post facto release of transcripts- after the grand jury's decision
- is but sheer bogus). Why do we need another layer in a now clearly flawed
system of grand jury "prosecutorial discretion"? It used to be axiomatic that
"Justice must not only be done, but must be seen to be done"! Based on
widespread dissent, not even the most myopic could reasonably, far less
unequivocally conclude that justice was either done or "seen to be done" in
either Ferguson or Staten Island.
A preliminary hearing to determine probable cause is a more transparent and
effective procedure than a secret grand jury to determine if the government
should charge an accused with a crime.
Pray tell, how does today's grand jury help conserve what is best in
contemporary American society beset with a multitude of complex issues.
It should suffice that where probable cause exists, any rogue police officer,
and any defendant(s) – e.g. Officers Wilson and Pantaleo, like anyone else,
should at a minimum be charged with murder and tried by criminal jury, without
the intervention of a grand jury, in a squalid and unseemly manipulation of the
legal system.
Caleb M. Pilgrim, Ph. D (Cantab.,), JD (Yale)
Chair
Greater New Haven Legal Redress Committee
545 Whalley Avenue
New Haven, CT 06511
cpilgrimesq@aol.com
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