Fw: Re: [Lawcourt-l] grand juries
Jon Roland
-------- Original Message --------
| Subject: | Re: [Lawcourt-l] grand juries |
|---|---|
| Date: | Sun, 07 Dec 2014 07:53:33 -0600 |
| From: | Jon Roland <jon.r...@constitution.org> |
| Reply-To: | jon.r...@constitution.org |
| Organization: | Constitution Society |
| To: | |
| CC: |
The present design, operation, and uses of grand juries is not consistent with the original understanding or intent of the Founders. To do that they would need to meet the following standards:
- Selected at random from the general public, with perhaps some filtering, but without "stacking".
- Selection by a neutral party (not the judge or prosecutor).
- Size of 23.
- Decision by 12.
- Election of foreperson by the members.
- Term of service long enough to learn how to do it.
- Limits on terms of service to avoid entrenchment.
- Adequate training of grand jurors.
- Prevention of undue influence by interested parties, especially judge or prosecutors.
- Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments.
- Enough time to examine each case, or enough grand juries.
- No impediment to access by public to members to present complaints or give testimony, except for reasonable scheduling.
- Acceptance of any person, not just a professional prosecutor, being appointed to prosecute a case by the grand jury granting him an indictment.
- Acceptance that a grand jury indictment removes official immunity from criminal prosecution.
- Acceptance that a grand jury finding of sufficient evidence of misconduct removes official immunity from civil prosecution.
- Establishment of rule that a grand jury must determine whether a court has jurisdiction before returning an indictment for that court.
- Avoidance of excessive or abusive use of grand jury to harass, intimidate, discredit, or injure persons.
- Prevention of misuse during trials of evidence obtained by grand jury.
For more on the subject see http://constitution.org/jury/gj/gj-us.htm
-- Jon ---------------------------------------------------------- Constitution Society http://constitution.org 13359 N Hwy 183 #406-144 twitter.com/lex_rex Austin, TX 78750 512/299-5001 jon.r...@constitution.org ---------------------------------------------------------- -------- Original Message --------
| Subject: | Re: [Lawcourt-l] grand juries |
|---|---|
| Date: | Mon, 8 Dec 2014 02:05:12 +0000 |
| From: | Kim Lane Scheppele <kim...@Princeton.EDU> |
| To: | Lisa Miller <mil...@polisci.rutgers.edu>, "lawco...@legal.umass.edu" <lawco...@legal.umass.edu> |
Because my undergraduate students have been fascinated and appalled by the Ferguson grand jury, I’ve diverted my teaching onto this subject. Here are some key things I’ve uncovered for my class:
n The St. Louis grand jury was operating under the standard that it had to determine only that there was “probable cause” that Darren Wilson had committed a crime. This is a low standard, and a standard used in most grand juries, including federal ones. This is why a study of federal grand juries found that out of 162,000 federal cases in 2010, Bureau of Justice statistics show that there was a FAILURE to indict in only 11 cases. In the garden variety criminal case, failure to indict is rare.
n That said, police shootings routinely fail to go to trial.
o Here’s an excerpt from a recent Wall Street Journal report on a Bowling Green study of police shootings: http://www.wsj.com/articles/police-rarely-criminally-charged-for-on-duty-shootings-1416874955
New research by a Bowling Green State University criminologist shows that 41 officers in the U.S. were charged with either murder or manslaughter in connection with on-duty shootings over a seven-year period ending in 2011. Over that same period, the Federal Bureau of Investigation reported 2,718 justified homicides by law enforcement, an incomplete count, according to experts.
o FiveThirtyEight collected a broader array of statistics on the prosecution of police for use of excessive force: http://fivethirtyeight.com/datalab/allegations-of-police-misconduct-rarely-result-in-charges/ . They confirm that police being tried for shooting a suspect in the line of duty is a rare occurrence.
n The Ferguson grand jury was given NO charges by the prosecutor; instead, they were expected to come up with the charges that they thought fit the crime, if there was a crime.
n How was the jury to know whether Darren Wilson had committed a crime? If he had been a civilian, criminal charges would have been obvious. But police are allowed to use force in ways that civilians aren’t. To explain this to the jury, the Ferguson assistant prosecutor gave to the jury a copy of the law regulating the use of deadly force in Missouri, which is as follows:
§ A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only …. when he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony; or is attempting to escape by use of a deadly weapon; or may otherwise endanger life or inflict serious physical injury unless arrested without delay.
n The problem with the Missouri law, however, is that it is flatly inconsistent with Tennesee v. Garner, 471 U.S. 1 (1985) which held that:
§ This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. . . .(3)
n The Missouri law permits officers to shoot to kill in cases where the suspect is merely attempting to escape, something that Garner finds unconstitutional. If the Ferguson grand jury believed that Wilson would have been justified in shooting to kill Michael Brown merely if he were escaping arrest, then they would not have had to reach agreement on whether Brown either had a weapon or was likely to seriously harm others.
n The first journalist to pick up this problem with Lawrence O’Donnell of MSNBC, himself a former prosecutor: http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666 . As O’Donnell explains with quotations from the transcript, the grand jury was given a copy of the law at the start of their consideration of the Wilson case, then told at the end that a Supreme Court decision had “created problems” with that law. Then, the grand jurors were told to ignore the Missouri law – but given no other standard to use in assessing whether the use of deadly force was lawful.
n Witnesses before the grand jury may not have counsel with them in the room when they testify. Defendants are often called, but they must be told that they are a target of the grand jury investigation. Usually, they plead the right against self-incrimination and refuse to answer any questions. What happened in the Ferguson case was highly unusual. Not only did Darren Wilson testify, but he testified in narrative form without many interruptions from the prosecutor. By contrast, the prosecutorial team cross-examined the eye witnesses, which brought out conflicts and inconsistencies in their testimony – but not in Wilson’s.
n You can see a helpful chart showing the key elements of Wilson’s story and the extent to which each was corroborated or contradicted by the other eyewitnesses, thanks to PBS: http://www.pbs.org/newshour/updates/newly-released-witness-testimony-tell-us-michael-brown-shooting/ .
n One reason why the case has been so conflictual is because prosecutor (McCulloch) is very close to the police. His father, mother, brother, uncle and cousin were all police officers. His father was killed in the line of duty, shot when responding to a call involving a black suspect. Had McCulloch himself been going through voir dire to sit on the trial jury in the Ferguson case, he would have surely been removed for cause. There were many calls for him to recuse himself in this matter, but he refused.
I hope all of that helps understanding a) that grand juries don’t usually confirm charges in police shootings generally but also b) why even against that usual background, the grand jury in Ferguson was unusually problematic.
best
kim
From: lawcourt-...@legal.umass.edu
[mailto:lawcourt-...@legal.umass.edu]
On Behalf Of Lisa Miller
Sent: Sunday, December 07, 2014 10:45 AM
Cc: lawco...@legal.umass.edu
Subject: Re: [Lawcourt-l] grand juries
Very interesting, Jim. I would guess that the instances when the prosecutor is generally unsure whether to indict or not are few and far between. In both of these cases it seems that prosecutors were seeking no bills.
I have the impression that the Michael Brown case is more problematic than Eric Gardner in the sense that there are serious questions about the police process after the shooting (delays in witness interviews and evidence collection, not confiscating Wilson's gun immediately, etc). So the prosecutor's (seemingly) willful attempt to undermine an indictment is especially telling, given the ample opportunity for drawing into question the reliability of the evidence that appeared to vindicate Wilson.
Whatever else Eric Gardner's case is, it strikes me as another example of a completely unnecessary use of force. What is the rush to get Gardner off the street? There are many ways to persuade someone that it is in their interest to come with the police voluntarily rather than by force. It may take time, and it may not make the police look like tough guys, but it also keeps people from getting killed. Many years ago, the Seattle PD started training their officers in how to deal with the mentally ill (not the case here but the point is similar) so as not to end up killing them. Patience, effective negotiation and persuasion, and a willingness to live with public annoyance are crucial.
Upholding the law and ensuring that non-threatening people are not killed by the police are not incompatible.
Lisa
On Sat, Dec 6, 2014 at 2:13 PM, James Eisenstein <j...@psu.edu> wrote:
The maxim that prosecutors generally
get what they want from a grand jury is a good
formulation.
I learned in the 1960s from interviews with federal
prosecutors about the strategies used to capture grand
juries. Bring the strongest, most horrific crimes to
the grand jury at the beginning of its term. They get
in the habit of indicting. Once confidence is gained,
it isn't difficult to indicate to the grand jury during
presentation of a case when a no bill is desired (to
shift the blame for no indictment away from the
prosecutor). The can be done subtly communicated to the
grand jury in a variety of ways. Respondents also
indicated that in some cases, they really didn't know
whether to indict or not, so took it to the grand jury
to decide after presenting the strengths and weaknesses
of the case. The St. Louis County grand jury began its
work in April, and was very likely well accustomed to
doing what the prosecutor wanted.
Some of the commentary I've seen argues that cases
should not be prosecuted unless there is proof beyond a
reasonable doubt. However, not all prosecutors follow
that principle. Some adopt a "trial sufficiency" rather
than "beyond a reasonable doubt" policy, arguing that
merely having enough evidence to justify taking the case
to trial with a reasonable change of conviction is good
enough.
At 11:40 AM 12/6/2014, Leslie Goldstein wrote:
I think it is plain that in both
the NYC case (where the cops literally felt
endangered by the enormous heft of the petty
criminal/now victim--"feared I would be crushed
between his body and the plate glass window") and
the Ferguson case (where there was physical evidence
that the victim had first attacked the officer in
the police car and tried to grab his gun and also
was considerably bigger than the cop), the
prosecutor did NOT want to indict and went to the
grand jury only for political cover. Perhaps the
maxim should not be about a ham sandwich but should
just be about the prosecutor's generally getting
from the grand jury whatever the prosecutor wants to
get.
12/5/2014 10:25 AM, Francesca Laguardia wrote:
Part of the difficulty here stems
from the fact that the answers vary by
jurisdiction. As a lawyer married to a state
prosecutor in New York, I thought I knew all about
grand juries and discovered how wrong I was when the
Ferguson grand jury began. Several Missouri
attorneys have stated that their defendants are
almost never allowed to testify in the grand jury,
although in New York defendants must be allowed to
testify if they request to do so (and their defense
attorney allows it). This is a right New York
grants that Missouri does not. Requesting to
testify is very rare, however, because defendants
waive their rights against self incrimination when
they come in to testify, and they testify without
the benefit of a judge who might uphold objections
to questions. They also do not have the opportunity
to listen to the other witnesses, so they cannot
know what will contradict or corroborate the
testimony of other witnesses. Additionally, they
are making a record long before trial, allowing
prosecutors to find any perjury or misleading
testimony that will make them look bad at trial.
Prosecutors can provide whatever charges they wish,
yes, including a range of charges. They choose
charges based on what they think is correct and what
they think they can prove. In New York, grand
juries can also request additional charges, although
I do not believe prosecutors are obligated to honor
those requests. In New York, prior to a vote not to
indict, prosecutors may ask what evidence they would
want to see in order to indict, and may then find
that evidence, present it, and ask the grand jury to
vote again.
As for juries asking defendants questions, the
prosecutor is the last word on questioning in the
grand jury, and may inform the grand jury that the
question is not relevant and then refuse to ask it,
although usually they don't do this because it looks
disingenuous. The prosecutor can also follow up
that question with other questions, or other
evidence, in order to minimize any damage the
defendant does with his/her answer. Prosecutors
will often call rebuttal witnesses after a defendant
testifies.
First degree reckless endangerment in New York is a
difficult charge, because the defendant must exhibit
depraved indifference and the circumstances must
present a grave risk of death. Depraved
indifference is a fairly high bar in NY. Second
degree reckless endangerment is a misdemeanor.
Reckless manslaughter (second degree manslaughter)
seems called for, but there are questions about the
defendants awareness of the risk he is putting the
victim in.
I have not been able to find which charges were
submitted to the grand jury. Does anyone know?
_________________________________________
Francesca Laguardia, J.D., Ph.D.
Assistant Professor of Justice Studies
Montclair State
University
On 12/5/2014 9:09 AM, Lisa Miller
wrote:
For
those knowledgeable about grand juries, I have
several questions about the recent non-indictments.
I am getting asked lots of questions from students
and I realize that there are a lot of holes in my
knowledge about grand jury proceedings!
How common is it for prospective defendants to
testify at grand jury proceedings? for jurors to
question them? Am I correct in understanding that
potential defendants have no specific right to
testify? If so, why would a prosecutor seeking
indictment ever bother to allow a defendant to
testify?
Do prosecutors provide a range of possible charges
to the juries and, if so, how do they arrive at
those charges (presumably there is a lot of
variation in this by district)? In the Eric Gardner
case, I understand that, even if the officer had
used a choke hold (which apparently is disputed),
choke holds are not illegal under New York law, but
wouldn't the use of a choke hold, knowing its
possible consequences, at least make it possible to
charge the officer with reckless endangerment?
I know that jurors can ask questions of witnesses,
but isn't there something odd about jurors asking
defendants questions when their task is not to
decide whether the person is guilty or innocent but
whether there is sufficient evidence to support an
indictment? Obviously the possible defendant has a
huge interest in providing answers that put
him/herself in the best light whereas, at least in
theory, other witnesses have no such (or fewer such)
incentives.
Thanks in advance.
Lisa
-------- Original Message --------
| Subject: | Re: [Lawcourt-l] grand juries |
|---|---|
| Date: | Mon, 8 Dec 2014 17:24:01 +0000 |
| From: | Raftery, William <wraf...@ncsc.org> |
| To: | Bert Kritzer <kri...@umn.edu> |
| CC: | lawco...@legal.umass.edu <lawco...@legal.umass.edu>, James Eisenstein <j...@psu.edu> |
According to the Survey of Court Organization (http://cdm16501.contentdm.oclc.org/cdm/ref/collection/juries/id/180), 18 states require indictments for felony prosecutions, but most states do have grand juries for at least some purposes (presumably, in some states prosecution can flow from either a grand jury indictment or alternatively at the sole discretion of the prosecutor through an information).
Bert
On 12/8/2014 10:47 AM, James Eisenstein wrote:
At 11:08 AM 12/8/2014, Bert Kritzer wrote:
Keeping in mind that prosecutors seldom prosecute cases that they don't think they can win (even if there is probably cause), I wonder if comparisons to routine grand jury proceedings makes sense.
Presumably with regard to routine cases, prosecutors will only go to the grand jury when they have decided that they want to prosecute, and they make that decision based not on probable cause but on whether they think they actually have enough evidence to convict.
Then there is the small subset of highly visible cases where a prosecutor feels compelled to take a case to a grand jury even if the prosecutor thinks there is either no probable cause or where there is probable cause but the evidence is unlikely to be sufficient to secure a conviction. The decision of the grand jury not to return an indictment provides political cover for a decision that prosecutor would have made in a system without a grand jury.
The challenge here is in part the secret nature of the grand jury process. Clearly there needs to be a rigorous investigation in cases such as Ferguson or Staten Island, and the grand jury serves as that vehicle. Would it make more sense for there to be something on the order of a public inquiry where there was public testimony from witnesses? Such things do happen in other systems, although this would by no means be a panacea, and I can imagine all sorts of pressures on potential witnesses in a public proceeding.
Bert Kritzer
On 12/8/2014 9:32 AM, Clayton, Cornell William wrote:
Kim,
I agree this is wonderful, thanks. One thing I am struck by from the NewsHour chart is the number of conflicting eyewitnesses that the jurors were exposed to. Does anyone know if this is typical for grand juries? I assume the prosecutor has complete discretion about which, and how many, witnesses to bring to the grand jury?
Sent from my Verizon Wireless 4G LTE smartphone
-------- Original message --------
From: James Gibson
Date:12/08/2014 4:26 AM (GMT-08:00)
To: lawco...@legal.umass.edu
Subject: Re: [Lawcourt-l] grand juries
Dear Kim,
This is FANASTIC -- a real asset for all of us. Thanks a million.
However, what's missing is perhaps the most important variable -- the decision rule. I believe MO law says a true bill issues on a 75 % vote. Therefore, the vote in Ferguson could have been 4 to not charge, 8 to charge. I don't know what the NY rule is. It's probably important to put the standard together with the rule (e.g., unanimous with reasonable doubt is about the most difficult regime imaginable) to understand what the GJ was doing.
I also wonder about why journalists haven't discovered the vote distributions. I wonder if it is legal for journalist to contact grand jurors, and if it is legal for grand jurors to talk about what went on during their deliberations. Of course, lawyers routinely interview petit jurors after the fact; there may be something special about grand jurors.
Finally, I know practically nothing about how grand jurors are selected. Obviously, there is no voir dire process because they are empaneled to hear multiple cases. I assume the prosecutor controls the selection, but could he/she, for instance, strike on the basis of race (i.e., has there been a Batson-like challenge to discretion in selecting jurors in the "grand" case?). How does striking work -- e.g., only for cause?
I've always known/taught that grand juries are in the pocket of the DA. But I am shocked at how little I actually know about the process.
Finally (finally), has anyone compiled data on DA elections across the country? Do DAs get re-elected at the same rate as judges? What about spending in DA races? I think I remember Charlie Geyh (or someone) saying that politicized elections actually began with a DA election in the 1970s in LA (may be wrong about this), but, again, I'm shocked at how little I know about electing DAs. I wonder if there will be electoral challenges in the next election to the DAs who ran the grand juries in MO and NY. Has a DA ever been turned out owing to the decisions of her/his grand jury?
Jim
From: lawcourt-...@legal.umass.edu [ mailto:lawcourt-...@legal.umass.edu] On Behalf Of Lisa Miller
Sent: Sunday, December 07, 2014 10:45 AM
Cc: lawco...@legal.umass.edu
Subject: Re: [Lawcourt-l] grand juries
Very interesting, Jim. I would guess that the instances when the prosecutor is generally unsure whether to indict or not are few and far between. In both of these cases it seems that prosecutors were seeking no bills.
I have the impression that the Michael Brown case is more problematic than Eric Gardner in the sense that there are serious questions about the police process after the shooting (delays in witness interviews and evidence collection, not confiscating Wilson's gun immediately, etc). So the prosecutor's (seemingly) willful attempt to undermine an indictment is especially telling, given the ample opportunity for drawing into question the reliability of the evidence that appeared to vindicate Wilson.
Whatever else Eric Gardner's case is, it strikes me as another example of a completely unnecessary use of force. What is the rush to get Gardner off the street? There are many ways to persuade someone that it is in their interest to come with the police voluntarily rather than by force. It may take time, and it may not make the police look like tough guys, but it also keeps people from getting killed. Many years ago, the Seattle PD started training their officers in how to deal with the mentally ill (not the case here but the point is similar) so as not to end up killing them. Patience, effective negotiation and persuasion, and a willingness to live with public annoyance are crucial.
Upholding the law and ensuring that non-threatening people are not killed by the police are not incompatible.
Lisa
On Sat, Dec 6, 2014 at 2:13 PM, James Eisenstein <j...@psu.edu> wrote:
The maxim that prosecutors generally get what they want from a grand jury is a good formulation.
I learned in the 1960s from interviews with federal prosecutors about the strategies used to capture grand juries. Bring the strongest, most horrific crimes to the grand jury at the beginning of its term. They get in the habit of indicting. Once confidence is gained, it isn't difficult to indicate to the grand jury during presentation of a case when a no bill is desired (to shift the blame for no indictment away from the prosecutor). The can be done subtly communicated to the grand jury in a variety of ways. Respondents also indicated that in some cases, they really didn't know whether to indict or not, so took it to the grand jury to decide after presenting the strengths and weaknesses of the case. The St. Louis County grand jury began its work in April, and was very likely well accustomed to doing what the prosecutor wanted.
Some of the commentary I've seen argues that cases should not be prosecuted unless there is proof beyond a reasonable doubt. However, not all prosecutors follow that principle. Some adopt a "trial sufficiency" rather than "beyond a reasonable doubt" policy, arguing that merely having enough evidence to justify taking the case to trial with a reasonable change of conviction is good enough.
At 11:40 AM 12/6/2014, Leslie Goldstein wrote:
I think it is plain that in both the NYC case (where the cops literally felt endangered by the enormous heft of the petty criminal/now victim--"feared I would be crushed between his body and the plate glass window") and the Ferguson case (where there was physical evidence that the victim had first attacked the officer in the police car and tried to grab his gun and also was considerably bigger than the cop), the prosecutor did NOT want to indict and went to the grand jury only for political cover. Perhaps the maxim should not be about a ham sandwich but should just be about the prosecutor's generally getting from the grand jury whatever the prosecutor wants to get.
12/5/2014 10:25 AM, Francesca Laguardia wrote:
Part of the difficulty here stems from the fact that the answers vary by jurisdiction. As a lawyer married to a state prosecutor in New York, I thought I knew all about grand juries and discovered how wrong I was when the Ferguson grand jury began. Several Missouri attorneys have stated that their defendants are almost never allowed to testify in the grand jury, although in New York defendants must be allowed to testify if they request to do so (and their defense attorney allows it). This is a right New York grants that Missouri does not. Requesting to testify is very rare, however, because defendants waive their rights against self incrimination when they come in to testify, and they testify without the benefit of a judge who might uphold objections to questions. They also do not have the opportunity to listen to the other witnesses, so they cannot know what will contradict or corroborate the testimony of other witnesses. Additionally, they are making a record long before trial, allowing prosecutors to find any perjury or misleading testimony that will make them look bad at trial.
Prosecutors can provide whatever charges they wish, yes, including a range of charges. They choose charges based on what they think is correct and what they think they can prove. In New York, grand juries can also request additional charges, although I do not believe prosecutors are obligated to honor those requests. In New York, prior to a vote not to indict, prosecutors may ask what evidence they would want to see in order to indict, and may then find that evidence, present it, and ask the grand jury to vote again.
As for juries asking defendants questions, the prosecutor is the last word on questioning in the grand jury, and may inform the grand jury that the question is not relevant and then refuse to ask it, although usually they don't do this because it looks disingenuous. The prosecutor can also follow up that question with other questions, or other evidence, in order to minimize any damage the defendant does with his/her answer. Prosecutors will often call rebuttal witnesses after a defendant testifies.
First degree reckless endangerment in New York is a difficult charge, because the defendant must exhibit depraved indifference and the circumstances must present a grave risk of death. Depraved indifference is a fairly high bar in NY. Second degree reckless endangerment is a misdemeanor. Reckless manslaughter (second degree manslaughter) seems called for, but there are questions about the defendants awareness of the risk he is putting the victim in.
I have not been able to find which charges were submitted to the grand jury. Does anyone know?
-------- Original Message --------
| Subject: | [Lawcourt-l] more on grand juries - and this time also on prosecutors and on estimates of the number of police shooting fatalities |
|---|---|
| Date: | Wed, 10 Dec 2014 04:19:48 +0000 |
| From: | Kim Lane Scheppele <kim...@Princeton.EDU> |
| To: | James Gibson <jgi...@wustl.edu>, "lawco...@legal.umass.edu" <lawco...@legal.umass.edu> |
Just getting back to this. . . .
Grand juries usually have to decide by a 2/3rds or 3/4ths vote – unanimity (as far as I know) is nowhere required. In the Ferguson case, the grand jury had 9 whites and 3 blacks with a ¾ voting rule. The vote was secret but obviously it was numerically possible for the grand jury to block a “true bill” with only white votes.
Federal Rules of Criminal Procedure, Rule 6 governs federal grand juries: http://www.law.cornell.edu/rules/frcrmp/rule_6 . In the federal system, one needs 12 jurors to return a “true bill” but the number of jurors on a panel can vary between 16 and 23. As Jim rightly notes, jurors cannot be screened out of a panel in advance for conflicts of interest with particular cases – they are empaneled to hear months of cases at a time. That said, the federal system permits challenges to individual jurors who are not “legally qualified” to sit on the grand jury.
How grand juries are selected at the state level depends on state law which varies widely:
n For example, Texas alone has two different systems for grand jury selection: http://www.tdcaa.com/journal/lone-star-grand-jury-selection-and-independence
n The Missouri process seems to envision construction of a master list http://civilprocedure.uslegal.com/trial/jury-selection/missouri-jury-selection/ from which the jurors in Missouri are chosen by a judge. http://www.thewire.com/business/2014/08/what-to-expect-at-tomorrows-grand-jury-in-the-michael-brown-case/378777/ . The Missouri rules indicate that no juror may be disqualified from serving “because of race, color, religion, sex, national origin, or economic status” which seems to imply that there could be challenges under this legal standard.
The Ferguson grand jury was unusual because the proceedings were made public. Grand jury testimony is usually secret, and any grand juror can be prosecuted for disclosing grand jury testimony. This is one reason why we know so little about how grand juries operate. In virtually all cases, no one is talking.
On DA elections: This really useful paper by Ronald Wright at Wake Forest http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Wright-FinalPDF.pdf summarizes what is and is not known about DA elections. Here are the re-election figures that Jim wanted to know:
The chief prosecutors in the 2,344 separate prosecutorial districts in the United States hold very secure jobs. We can begin with the success rate of incumbents across all general election races: the sitting prosecutors won 71% of the general elections. The more pertinent number, however, is the success rate of incumbent prosecutors in elections when they seek re-election. Because the incumbent sought re-election in only 75% of all general election campaigns, the incumbent success rate when running for office was 95%.
In response to Clayton’s question: the prosecutor controls what evidence to present to the grand jury. There is certainly no need or requirement that he present everything to the grand jury. Grand juries often hear lots of witnesses for complex crimes (e.g. organized crime rings), but people who follow grand juries more closely than I do say that this was an unusual number of witnesses to call for a relatively simple event (one cop, one victim, one location). Again, remember that the standard is low: the prosecutor only has to persuade 3/4ths of the grand jury that there is “probable cause” to believe that a crime has occurred.
The sheer number of witnesses and the disclosure of the testimony after the grand jury hearing was over made it look like there was a regular trial. But of course there wasn’t. The normal procedures, protections and safeguards one finds in a trial are not operating in a grand jury setting. Witnesses have no right to counsel present in the grand jury room. The rules of evidence are not followed, so there is no bar to hearsay, inflammatory photographs and the like. And there was no cross-examination as there would have been in a real trial because grand jury hearings are not adversarial processes. Most crucially, the defense case was not presented – unless the prosecutor presented it instead.
I’m stunned with the sheer magnitude of fatal police shootings in the US. Here is a graph that shows number of fatal shootings by police in the US from FiveThirtyEight in an essay “Nobody Knows How Many Americans the Police Kill Each Year.” As the title reveals, all measures are flawed, and they disagree.
· FBI = shooting deaths reported by local police departments to the FBI. But many police departments don’t report – e.g. no police departments in Florida have reported since 1997.
· NVSS = autopsy reports attributing cause of death to “legal intervention” (public health statistics). But coroners don’t always know that a police officer fired the bullet that caused the death - plus this number also apparently includes executions.
· BJS = Bureau of Justice statistics from household surveys, widely considered by criminologists to be the most accurate number – but it is slow to be published and requires someone living to report on someone who was killed, so it might not include now-dead people who living on the streets or with no family etc.
But of course the biggest distortion in the estimate is that these figures only record the “justifiable homicides” in the case of the FBI numbers which implies that the unjustifiable homicides are apparently elsewhere classified. And they mix up legal executions with shoot-to-kill on the streets in the case of the NVSS numbers. And they include only “arrest-related homicides” in the case of the BJS, which means that police shootings outside of the arrest context are not reported.
Race is a huge part of this story. ProPublica analyzed the records of police shootings from 2010-2012 and found that black men were 21 times more likely to be victims of a fatal police shooting than were white men. See http://www.huffingtonpost.com/2014/10/10/racial-disparity-police-killings_n_5965706.html for more details. More estimates of racial disparities among those who are shot and killed by police can be found here: http://www.motherjones.com/politics/2014/08/police-shootings-ferguson-race-data .
Finally, because I’m usually a comparativist, I can’t resist the comparison:
best,
kim
From: lawcourt-...@legal.umass.edu
[mailto:lawcourt-...@legal.umass.edu]
On Behalf Of James Gibson
Sent: Monday, December 08, 2014 7:19 AM
To: lawco...@legal.umass.edu
Subject: Re: [Lawcourt-l] grand juries
Dear Kim,
This is FANASTIC -- a real asset for all of us. Thanks a
million.
However, what's missing is perhaps the most important
variable -- the decision rule. I believe MO law says a true
bill issues on a 75 % vote. Therefore, the vote in Ferguson
could have been 4 to not charge, 8 to charge. I don't know
what the NY rule is. It's probably important to put the
standard together with the rule (e.g., unanimous with
reasonable doubt is about the most difficult regime
imaginable) to understand what the GJ was doing.
I also wonder about why journalists haven't discovered
the vote distributions. I wonder if it is legal for
journalist to contact grand jurors, and if it is legal for
grand jurors to talk about what went on during their
deliberations. Of course, lawyers routinely interview petit
jurors after the fact; there may be something special about
grand jurors.
Finally, I know practically nothing about how grand
jurors are selected. Obviously, there is no voir dire
process because they are empaneled to hear multiple cases. I
assume the prosecutor controls the selection, but could
he/she, for instance, strike on the basis of race (i.e., has
there been a Batson-like challenge to discretion in
selecting jurors in the "grand" case?). How does striking
work -- e.g., only for cause?
I've always known/taught that grand juries are in the
pocket of the DA. But I am shocked at how little I actually
know about the process.
Finally (finally), has anyone compiled data on DA
elections across the country? Do DAs get re-elected at the
same rate as judges? What about spending in DA races? I
think I remember Charlie Geyh (or someone) saying that
politicized elections actually began with a DA election in
the 1970s in LA (may be wrong about this), but, again, I'm
shocked at how little I know about electing DAs. I wonder if
there will be electoral challenges in the next election to
the DAs who ran the grand juries in MO and NY. Has a DA ever
been turned out owing to the decisions of her/his grand
jury?
Jim
Kim Lane Scheppele
Director, Program in Law and Public Affairs
Rockefeller Professor of Sociology and International Affairs
in the Woodrow Wilson School
and in the University Center for Human Values
415 Robertson Hall, Woodrow Wilson School, Princeton University, Princeton NJ 08544
Phone: +1.609.258.6949
Email: kimlane@princeton.
Webpage: LAPA.princeton.edu