Many people have been asking me, a former prosecutor and current defense counsel to explain the Grand Jury system and how in the world the Missouri and New York Grand Juries could have reached their decisions. Let me explain...
What is a Grand Jury? Can I get out of it?
In New York, the Grand Jury is a group of 23 people chosen to hear a number of cases over a period of time. If a majority of the jurors agree there is enough evidence to support a charge they indict. It is very difficult to get out of Grand Jury duty. Grand Jurors are not interviewed by lawyers or questioned by a judge before serving. Pretty much, if you are a US citizen and live in the county and are called to serve you are in.
Why do they even have a Grand Jury?
Grand Juries were created to be a check on the executive branch. Instead of having the prosecutor immediately put someone on trial for a felony, the law requires that the prosecutor must have a group of citizens look at his evidence and agree there is enough to go forward.
How Does the Grand Jury Decide If There is Enough Evidence To Go Forward?
It considers the evidence that is put before it. Only after a majority of the jurors determine there is reasonable cause to believe the accused committed the crime can the case continue. "Reasonable Cause" is the level of certainty the Grand Jury must possess to indict. It is a far lower standard than a trial jury's level of proof "beyond a reasonable doubt".
How Does the Grand Jury Really Work?
I have seen hundreds of cases submitted to the Grand Jury and the approach is almost always the same:
- The DA evaluates the case outside of the Grand Jury and decides he wants to indict the accused;
- The DA submits evidence to the Grand Jury; and then
- The DA asks the Grand Jury to return its decision on certain charges.
Insider's Tip
While, the Grand Jury was originally supposed to be a check on the prosecutor, in practice it has become an agent of the prosecutor. The DA determines what evidence the Grand Jury gets to hear and selects what charges to submit. There is no judge, defense counsel, or defendant in the Grand Jury. It's the DA show.
Because the DA is in charge and the law allows him great discretion, in a typical case the DA only puts evidence before the Grand Jury that supports an indictment. This is done for strategy reasons. By putting only as much evidence as is absolutely necessary to get the indictment the DA avoids having to provide the defense a preview of what each witness will say at trial. For example, in a robbery case where there was a victim, two witnesses, the defendant's DNA at the scene, and where the defendant made a confession, the DA would try and secure the indictment by having only the victim testify. Further, because the DA has decided he wants the indictment even before he begins the Grand Jury presentation, the Grand Jury will not hear evidence that helps the defendant (e.g., the victim having identified a different person as the perpetrator of the robbery).
If the DA runs the Show, How Did They Fail to Indict in MO and NY?
In short, the District Attorneys deviated from the standard approach. Instead of the DA deciding there was enough evidence to support the charges and then putting in evidence that supports that determination like DAs do in 99% of cases, the DA instead gave the Grand Jury all the evidence and asked them to decide.
But If the Standard is So Low, Shouldn't the Grand Jury Have Indicted Anyways?
Not necessarily. You have to consider many things including the make up of the Grand Jury, the evidence, how it was presented, and the charges that were submitted.
Missouri Case
With regard to the MO case, a careful reading of the Grand Jury file shows that a good defense counsel would have found sufficient physical evidence and eye-witness testimony to support Officer Wilson's belief that he was in physical danger and thus was justified in his actions.
New York Case
The NY case is more difficult to understand, especially when you watch the video. But, consider the following: (1) Staten Island is 75% non-Hispanic white, (2) a large segment of its population works as or is closely associated with the government, including the police, fire, and corrections department; (3) more than 75% of Staten Islanders approve of the job the police do; (4) Staten Island has the lowest crime rate of the five boroughs (5) and the Grand Jury heard two hours of testimony from Officer Pantaleo who maintained he was scared and did not mean to hurt anyone that day.
Takeaway
The deaths of two young unarmed black men has spurred intense debate into how the the criminal justice system should deal with officers who take someones life in the line of duty. Despite the different approaches being advocated, what everyone can agree on is that the goal of our justice system is equality before the law.
The fastest way to achieve that laudable goal is to have the DA employ the same approach to all those who stand accused of a crime regardless of race, class, social status, or vocation. This can be done by either giving the Grand Jury all of the evidence in every case, or giving the Grand Jury just the evidence that supports the indictment and have the case fully adjudicated at trial.
*If you think you need personalized legal assistance, always speak with a qualified attorney.
