California Governor Passes Ban On Use Of Grand Juries In Officer-Involved Killings

from the unindictable-ham-sandwiches-forced-to-brave-actual-due-process dept

Wed, Aug 12th 2015 2:53pm — Tim Cushing

Grand juries have proven capable of handing down nearly any indictment requested by prosecutors… if it's just a citizen on the receiving end. What's normally a rubber-stamping of charge recommendations tends to fall apart when a police officer is the potential defendant. With rare exceptions, actions that would have seen the average citizen charged with a crime are dismissed by grand juries -- whose only true consistency appears to be compliance. If a prosecutor doesn't want someone charged, a grand jury can just as easily be led in that direction as well.

California governor Jerry Brown is looking to even the odds. While the best strategy would be to dump the grand jury system altogether, Brown is at least opting for the next best thing.

Gov. Jerry Brown signed legislation Tuesday making California the first state in the nation to ban the use of grand juries to decide whether police officers should face criminal charges when they kill people in the line of duty.

In this move, there's a tacit admission that grand juries will buy whatever a cop-friendly prosecutor chooses to sell them. Beyond that, there's an open admission that grand jury proceedings are about as opaque as the legal process can get.

"What the governor's decision says is, he gets it -- the people don't want secrecy when it comes to officer-involved shootings," said retired judge and former San Jose independent police auditor LaDoris Cordell, the first African-American appointed as a judge in Northern California and a key supporter of the bill. "We're not trying to get more officers indicted. We're saying, 'Whatever you decide, do it in the open.'"

This should be the case in every grand jury presentment, not just those pertaining to police officers. And there's a lot of area left uncovered by the limitation of this ban to only the times when an officer manages to kill someone. But it's better than the current situation, which is generally a citizen's jailhouse railroad and an officer's slightly-delayed vehicle of absolution.

And, of course, prosecutors and police unions are against it.

[T]he California District Attorneys Association and the California Police Chiefs Association opposed the ban, saying the grand jury should be preserved as an option. Imposing a blanket prohibition would discriminate against police officers on the basis of their occupation, they argued.

As opposed to being discriminated for on the basis of their occupation? I don't think many people feel a grand jury has anything to do with due process. And that goes both ways. I'm sure cops would rather face a grand jury than a real "jury of their peers." The odds of walking away without charges is greatly increased in the former situation.

The two agencies unwilling to see their own ~~thrown to the wolves~~ face the harrowing nightmare that is due process have a suggestion: let's not scrap the cop-friendly grand jury system. Instead, let's put all the sunlight we can on cases where officers have been declared to have Done Nothing Wrong.

The association suggested that the Legislature could increase transparency by allowing grand jury transcripts to be released in cases for which no one was indicted.

The only thing transparent about these entities is their self-interest. The only way something like this could be framed as a "concession" is if the person delivering it is completely devoid of self-awareness and/or a conscience. While it would allow for some Monday morning quarterbacking of the grand jury's decision, it doesn't do anything to stop the underlying problem: that cops are routinely treated very differently than citizens by grand juries.

Mark Zahner of the District Attorneys Association, appears to have divested himself of his self-awareness and conscience years ago.

"It's absolutely ludicrous to espouse or believe that police officers get treated any differently than anyone else."

It's absolutely ludicrous to espouse or believe that police officers get treated any differently than anyone else.

Mark Zahner: absolutely ludicrous.

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Filed Under: california, grand juries, jerry brown, killings, murder, police, preferential treatment

18 Comments

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Anonymous Coward, 12 Aug 2015 @ 3:23pm

The idea is that twelve of your peers need to indict and twelve more need to convict in trial for you to be found guilty. Its not adversarial though. That might be the problem.
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Anonymous Coward, 12 Aug 2015 @ 3:35pm

I don't think cops should be treated like anybody else. Regular citizens are entrusted by the public to uphold the law. If you give me a gun and the legal authority to use it, I would damn well expect you to hold me more accountable than someone who hadn't sworn the same oath that I did when I took the job.
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Anonymous Coward, 12 Aug 2015 @ 3:35pm

Re:
"Regular citizens *aren't*..."
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Anonymous Anonymous Coward, 12 Aug 2015 @ 3:36pm

Absolutely Ludicrous
Well Mr. Zahner, if it is so absolutely ludicrous that police officers are treated differently than others then maybe they will give up their qualified immunity, their special treatment and time frames for making statements about any accusation, and the other extra special deals negotiated by their unions (I would say at gunpoint but it is really against the threat of stike which should never have been allowed as they are public servants, which is not to say that they should not be treated fairly).
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Ima Dork (profile), 12 Aug 2015 @ 5:01pm

Zahner meant to say:

treated any differently than anyone else...who works in a law enforcement agency or capacity.
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PRMan, 12 Aug 2015 @ 5:01pm

Grand juries
I'm sure cops would rather face a grand jury than a real "jury of their peers."
--------------
You do know that a Grand Jury decides whether there is enough evidence to have a case or not, right?

Yes, I know that people will say that they can get off even before the trial, but this is clearly unconstitutional, as all criminals (including police) are entitled to a Grand Jury hearing before a trial.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury" - 5th Amendment
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Anonymous Coward, 12 Aug 2015 @ 5:18pm

Re: Grand juries
5th Amendment
Barron ex rel. Tiernan v Mayor of Baltimore (1833)
Mr Chief Justice MARSHALL delivered the opinion of the Court. . . .

[T]he fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.
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jimb, 12 Aug 2015 @ 5:44pm

heh
It more than likely means that this is a shield for officers that may be guilty of crimes such as murder.
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Sheogorath (profile), 12 Aug 2015 @ 6:18pm

Re: Grand juries
No, a Grand Jury is supposed to decide whether there's enough evidence for someone to be indicted on capital charges, and they're abusing that power in the case of cops who kill by saying they shouldn't even be charged.
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Anonymous Coward, 12 Aug 2015 @ 7:53pm

Re: Re: Grand juries
Here's how it works.
The prosecutor decides if he wants to bother the grand jury. The GJ decides if it's worth a trial.
Without the GJ all you do is remove the DA's option for a formal review by the GJ. If anything, removing the GJ will result in fewer bad cops seeing a trial, or the prosecution doing an intentionally piss poor job of bringing a case.
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Anonymous Coward, 12 Aug 2015 @ 8:47pm

Re: Re: Re: Grand juries
The problem is that it's the prosecutor alone who presents evidence to the GJ. So if the prosecutor decides he doesn't want to prosecute he just presents his weakest case and plays up the evidence in favor of the defendant-to-be, leading to the GJ deciding there isn't enough of a case. Then since GJ proceedings aren't public the prosecutor can turn around and deflect criticism by saying "I tried my best but the grand jury wouldn't indict." and nobody can prove otherwise.

With the grand jury option removed, now if the prosecutor doesn't want to prosecute he has to come straight out and say he isn't going to prosecute. If he doesn't want to lay his strongest case, he has to do it in public where everyone can see him fumble it as it happens. That would reduce, not increase, the chances of the prosecutor deliberately watering down his case.
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Anonymous Coward, 12 Aug 2015 @ 9:35pm

It's absolutely ludicrous to espouse or believe that police officers get treated any differently than anyone else.

If anything, they should be held to a higher, not lower standard. Otherwise, justice could easily be corrupted.
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OGquaker (profile), 13 Aug 2015 @ 1:28am

Mr. AboveTheLaw; you signed
A 1880's 'civics' book around here says the 5th amendment to the Federal Constitution is about protecting each and every one of us from legal charges that would "destroy our standing in the community" (charges that forever prevent a person from receiving section 8 housing & food stamps, federal aid for education, a lifetime "Meagon's" listing for pandering?).
With the Federal courts (and many Superior courts in 'drug' and 'sex' 'crimes') moving from 50% trials in the late 1960's to 98% plea bargains after 2000, our 5th has been lost. I have confronted dozens of 'lawyers' over the years, only one REMEMBERED the 5th as protecting us (with a bevy of citizens) from overzealous cops and DA's scoring #points for Law&Order.
Chief Justice Marshall, Atty. Gen. Edwin Meese III and Jim Crow are legally dead.

BUT, as an ex enlisted (sworn contract) member of the U.S. Army, almost none of my civilian 'rights' survived WHILE I WAS UNDER CONTRACT.
MoonBeam is correct here; no secret juries for "Sworn Peace Officers"
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Anonymous Coward, 13 Aug 2015 @ 3:26am

I keep thinking about the Mafia when I see news about police wanting to be treated as above the laws when they get caught breaking the laws
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David, 13 Aug 2015 @ 6:07am

Re: Grand juries
But how many ham sandwiches have to suffer until we understand that the system is a little flawed?

I understand the intent. It's kindof a dry run for the prosecutors to see if the people believe the evidence enough to be worth doing. And if the prosecutor tries hard enough to convince the Grand Jury. But the situation is kindof stacked in favor of how the prosecutor wants the decision to be made.

In the case of police, the prosecutor isn't exactly an unbiased party. This is the problem.
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David, 13 Aug 2015 @ 7:08am

will like be declared UnConstitutional
I'm sure someone will argue that 5th doesn't apply but:

"Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;"

I have a feeling the California Supreme Court will side with the US Constitution -- but it is California so anything is possible.
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Anonymous Coward, 13 Aug 2015 @ 8:44am

Re: will like be declared UnConstitutional
I'm sure someone will argue that 5th doesn't apply
Well, if you read the reply in the other thread closely enough to be sure of that, then why aren't you bringing forth any argument as to why the 5th should apply after all?

Perhaps the 1833 vintage of Chief Justice Marshall's opinion should provide some kind of hint? In this particular context, at the very least, you ought to provide more textual support. Maybe you could point to one of the later amendments, so we could move on just a teensy little bit?

Your ‘feeling’ is not especially pursuasive, imho.
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Anonymous Coward, 13 Aug 2015 @ 9:13am

Since most police departments have so much military gear and act as if there are in the military, maybe they should have to follow the UCMJ. See how they stand up to that.
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