On Indicting Cops and Ham Sandwiches
Two days ago, Tamir Rice’s mother, Samaria Rice, asked a Cleveland prosecutor to step down and appoint an independent prosecutor to continue with her son’s homicide case. Given the precedent that American prosecutors have set lately in similar cases, I found her request to be …well… pretty understandable. If you consider that the prosecutors in both the Michael Brown and Eric Garner cases failed to even obtain indictments, I think it’s fair to be pretty skeptical of the entire process. Because, ok, getting an indictment is, like, notoriously easy. And remember: obtaining the indictment just means “making the charges stick”. It just enables a prosecutor to potentially move forward to the trial phase. That’s it.
“The saying goes,” I recall my criminal procedure professor ramping up to what he thought would be the pinnacle of hilarity, “that a prosecutor could get a grand jury to indict a ham sandwich-” he paused, smirking, while we all chuckled out of what I can only assume was a mixture of pity and fear. It was the fall of 2013, no one had ever heard the names Eric Garner nor Michael Brown nor Tamir Rice. We were discussing the grand jury in terms of ham sandwiches.
There are meant to be two takeaways from this anecdote: 1) the grand jury, in modern times, has been understood to be a mechanism by which prosecutors indict — and do so fairly easily, to the chagrin of many legal scholars, and 2) law professors think the lamest shit is funny.
If you ever take a course on criminal procedure in America, it’s likely that at some point or another you will hear or read some academic’s recitation of the oft-referenced truism: that the grand jury is little more than a “rubber stamp” for prosecutors. In law school, students are usually taught about the failings of the grand jury proceeding as being a defense-minded critique: that defense attorneys were the ones who had the real beef with grand juries because it is too damn easy to indict the accused. That being said, it’s worth noting again that one explanation as to why it is so easy is that the grand jury is mostly just the thing that allows a prosecutor to formally charge someone with a felony crime. The grand jurors put the seal of legitimacy on charges brought by the prosecution.
I think that perhaps with a better understanding of the purpose and modern function of the grand jury, people can have a better understanding of why this failure to obtain indictments is truly alarming. One could (in my mind, justifiably) surmise that prosecutors have begun to make a trend of taking cases to the grand jury for the purpose of disposing of them, without public reprimand.
Ok, so, like, why am I rambling on about the fact that these two other cases against Officers Darren Wilson and Daniel Pantale didn’t make it past the grand jury proceeding? Because, simply put, obtaining an indictment is crazy easy.
The simplest way to showcase how crazy easy it is for a prosecutor to obtain a grand jury indictment is by comparing and contrasting the better-known trial proceeding with the ever-elusive grand jury proceeding. I think it becomes much clearer, also, as to why it raises so many red flags when we keep seeing grand juries declining to indict on cases involving black men being killed by police officers.
Both at trial and in grand jury proceedings, prosecutors can call any witness, and the witnesses usually have to testify. But, when a prosecutor subpoenas witnesses to testify in front of the grand jury: witnesses cannot bring their attorneys into the room. That’s huge. That means that not even the accused, whether he or she is subpoenaed to testify or not, has the right to an attorney during these proceedings. In practice, this means that a prosecutor can call the accused to testify and essentially cross examine him for the entirety of his time in front of the grand jury. Most fundamentally, it means that there is no adversary to the prosecutor when she is presenting her case to the grand jury.
As if this adversary-less environment didn’t make things easy enough for the prosecutor, during a grand jury proceeding, unlike at trial, the rules of evidence don’t apply. Like, there are no objections. To anything. Because literally no evidence is objectionable. Prosecutors can present evidence that would be inadmissible in court. So, basically, they can ask the witnesses any questions they want and, because there’s no opposing attorney there anyways, a witness can speculate wildly about the accused. The same goes for testimony of people who don’t have first hand knowledge of events, because prosecutors can introduce hearsay testimony into evidence.
Guys, prosecutors can even introduce evidence to the grand jury which was obtained illegally. Usually prior to a trial there will be a hearing about whether a prosecutor or a defendant can introduce certain evidence to the jury. So, like, if a cop unlawfully searches you, and the judge agrees the search is unlawful, anything that cop found from his illegal search is “fruit of the poisonous tree” or, in other words, inadmissible. That illegal search is perfectly admissible to a grand jury, though.
Oh, and get this: no judge oversees grand jury proceedings. That means if you’re sitting on a grand jury, you’re hearing this story completely from the point of view of the prosecutor, a prosecutor who is under no obligation to provide evidence to the contrary, which, lets be real: why would they? They’re trying to obtain an indictment; it makes little sense for the prosecutor to begin building a defense for the accused.
Something that doesn’t really go to my point but is an interesting tidbit: unlike in a trial, grand jurors can and often do question witnesses. It’s a less formal proceeding, generally.
Ok, but a really big important aspect of the grand jury that contrasts so fundamentally with a trial is the standard by which the grand jury is meant to assess the case.
In a criminal trial, the jury’s standard by which to determine the question of guilt is whether or not they find the defendant guilty “beyond a reasonable doubt. First off, a grand jury is never charged with determining guilt. They’re not concerned with such grave inquiries. Remember: a grand jury is just the thing that allows a prosecutor to formally charge someone with a felony crime. An indictment on the charges is not a conviction on the facts.
A grand jury can indict a person if it finds “probable cause” to believe the person committed a crime. This means grand jurors simply have to agree with the prosecutor that, yes, this person probably did what the prosecutor said they did in this proceeding — this proceeding in which the prosecutor, ostensibly, introduced all the evidence she wanted, regardless of its ability to be heard at trial, and in which they, ostensibly, heard no evidence to the contrary of the prosecutor’s position.
The reason why they give the prosecutor all this lee-way in how they present their case is because a grand jury isn’t in the business of determining guilt; a grand jury simply allows the prosecutor to move forward with charges.
Critics of the handling of the Garner and Brown cases sometimes frame the issue as being generally the product of institutionalized racism, where the problem lie not in a malfunction, necessarily, of particular mechanisms being used — but in the overall system within which it’s taking place. I don’t think that’s wrong; institutionalized racism plays a role at every level of these injustices, but, I do think that it’s important to understand how these cases represent what is potentially an abuse of the grand jury and why the failure of theses prosecutors to even obtain indictments should be alarming, given that both Darren Wilson and Daniel Pantale seemed highly more indictable than a ham sandwich. Nuck Nuck Nuck.
So I write this as a general reminder: the grand jury is nothing like a criminal trial (even though most felony criminal trials result in conviction, for what its worth) and the main issues legal scholars have had, citing the perversion of the function of the modern grand jury have almost always surrounded the manner in which is has been too easy for prosecutors to obtain indictments. Former House Representative Henry Hyde, a Republican (see, I can’t be biased I’m citing republicans!!!!) from Illinois, once said, “the grand jury is a total captive of the prosecutor, who can indict anybody, at any time, for almost anything.” [“Even a ham sandwich?” Says the plucky young lawyer, while everyone reading this laughs and laughs.]
If it really is that easy to indict on charges, I don’t think it’s terribly absurd of Ms. Rice to be weary of a system in which for some totally unknowable reason* (*racism) prosecutors who should be able to indict a ham sandwich aren’t capable of indicting cops.
