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What's A Grand Jury And How Does It Work?

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Confused about what grand juries do and how they work? You're probably not alone.

After three months of testimony, an Ohio grand jury on Monday declined to indict the two Cleveland police officers involved in the 2014 fatal shooting of 12-year-old Tamir Rice. The decision means that the officers will not face criminal charges.

Rice, who was black,  was shot and killed last November while playing with a fake gun outside a Cleveland recreation center, an incident that drew fierce community protests and calls for justice.


It was NOT the grand jury's responsibility to determine whether the two officers -- the one who fired the gun and his partner -- were guilty of committing a crime. Rather, the jury was solely asked to determine if the evidence presented by the county prosecutor  was solid enough ("probable cause") to even justify criminal charges (the "indictment"). If the jury had determined there was enough evidence to do so, the officers would then be tried in a criminal court.

Instead, the jury decided that the shooting was the product of human error, which did not indicate criminal action. In other words, there was not sufficient probable cause to charge the officers with a crime. And that means no criminal trial for the two officers.

"Simply put, given this perfect storm of human error, mistakes and miscommunications by all involved that day, the evidence did not indicate criminal conduct by police," Cuyahoga County prosecutor Timothy McGinty told reporters.

This is the latest in a series of highly controversial grand jury decisions in the past two years that have exonerated police officers involved in the deaths of unarmed black men. That said, the following is an effort to explain the surprisingly complicated grand jury process.

[Disclaimer: This post is really long -- a whole lot of sweet, sweet text -- I suggest you use the chapter links below to get through it in stages.]


What is a grand jury supposed to do?

Although the specific functions of grand juries differ from state to state, most hear evidence presented by a prosecutor and decide if that evidence is solid enough (probable cause) to charge a suspect with a felony (the indictment). If so, the case goes to trial.

One way to think of the grand jury is as a screening process to determine if a trial is even necessary. But keep in mind that it's NOT a trial itself. There's no judge in the room, no defense lawyer, no formal cross-examination and -- perhaps most widely misunderstood about the process -- no actual verdict. Unlike a standard 12-member trial jury (formally known as a "petit jury"), a grand jury is not tasked with determining guilt beyond a reasonable doubt. Rather, it is responsible for deciding whether enough evidence exists to justify a trial in the first place. In other words, is there probable cause to charge the potential defendant with a crime?

Like the grand juries in the the Michael Brown and Eric Garner cases, the Ohio grand jury in the Tamir Rice case was not tasked with deciding if a crime did or did not occur. They were simply asked to determine if the evidence presented to them was strong enough to charge the police officers in question with a felony (murder or manslaughter) and go forward with a criminal trial.They determined that it was not.

William Landay, a former assistant district attorney in Middlesex County, Massachusetts, explains it nicely in his 2013 novel, "Defending Jacob":

"A grand jury proceeding is not a trial. There's no judge in the room and no defense lawyer. The prosecutor runs the show. It is an investigation and in theory a check on the prosecutor's power since the grand jury decides if the prosecutor has enough evidence to haul the suspect into court for trial. If there is enough evidence, the grand jury grants the prosecutor an indictment ... If not, they return a no bill."


What is standard grand jury procedure?

Although grand jury rules and proceedings vary by jurisdiction, most state grand juries follow a fairly standard format (although federal grand juries have a few unique elements, they run similarly). As the name implies, grand jurors are generally bigger than 12-member trial juries (hence: "grand" vs. "petit"), from as few as 12 (in Missouri) to as many as 23 (in New York). Grand jury members are usually chosen at random from the regular juror pool without a formal screening process. They are "standing" jurors, meaning that they typically serve long terms on an intermittent, on-call basis, often hearing multiple cases over many months. So, unlike trial juries, grand jurors are not typically vetted and handpicked for a specific case. The grand jury in the Michael Brown case, for instance, was selected in May -- long before the incident occurred -- and for the proceedings convened 25 times over a three-month period.

Typically, the only people in the grand jury room are the jurors, the prosecutors, and one or two witnesses — usually the reporting officer and the victim (if there is one). Additional witnesses and evidence can be presented in more complex cases, although the targets of an investigation (the suspects) rarely make an appearance. In some jurisdictions -- including Missouri -- grand jurors can directly question witnesses.

In the absence of a judge, the prosecutor is the presiding officer. He or she runs the show, and is responsible for instructing the jury on the law. Critics of the process argue that this factor can be particularly problematic.

Although grand jurors aren't sequestered during deliberation, the proceedings are secretive, completely closed to the public and the defense counsel. The transcript also usually remains sealed.

After the grand jury hears the evidence, the prosecutor typically presents jurors with one or more criminal charges to consider (i.e., first-degree murder, involuntary manslaughter, etc.). The jury must then decide if there is "probable cause" to indict the suspect on one of those charges. In other words: Is there sufficient evidence to conclude that the accused person probably (although not definitely) committed the crime? In legal-speak, the jury returns either a "true bill" or "no true bill" of indictment; the latter is a dismissal of all charges.

Finally, unlike trial juries, a grand jury's decision does not need to be unanimous. Rules vary by state, but usually some kind of super-majority of jurors (two-thirds or three-fourths) is needed to return an indictment. In New York, a bare majority of only 12 jurors (out of 23) is required. Conversely, in Ohio a consensus of seven out of nine jurors are necessary to return an indictment.


Are grand juries required in criminal cases?

No. Although a federal grand jury indictment before trial is required under the Fifth Amendment of the U.S. Constitution, the mandate applies only to federal cases, not state-level prosecutions.

As such, non-federal grand jury procedures are determined on a state-by-state basis, and while most states have some grand jury provision, fewer than half actually require it (a preliminary hearing is a common alternative). In fact, grand jury procedures are required in neither Missouri nor New York. The decision to have one is generally at the discretion of the prosecutor. Grand juries date back to medieval English common law. They were established as part of the legal systems of former colonies throughout the United Kingdom. Interestingly, though, England abolished its grand jury system in 1933, and virtually all of its former colonies followed suit. The United States stands alone in continuing to use them.


Is it common for grand juries to return indictments?

Extremely common. Grand juries almost always do what the prosecutor advises. This is largely because finding probable cause is generally a pretty low bar. As the U.S. Supreme Court wrote in a recent ruling, probable cause requires only the "'kind of 'fair probability' on which reasonable and prudent [people,] not legal technicians, act."'

A common criticism of the grand jury process is that it is essentially -- in most cases -- a rubber stamp for prosecutors. Using Bureau of Justice Statistics data, the news site FiveThirtyEight found that federal grand juries declined to return an indictment in 11 of the 162,000 cases that U.S. attorneys prosecuted in 2010. That's a no-indictment rate of less than .007 percent. Keep in mind that this figure applies to federal cases -- aggregate data for state grand jury decisions is harder to come by -- so the numbers aren't directly comparable, but it does give a sense of how rare a no true bill is in any type of grand jury.

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” (In an ironic twist of fate, Wachtler was later indicted on attempted kidnapping charges, and served 13 months in federal prison.)

In fact, the one consistent exception to the success of grand jury indictments is when police officers are the potential defendants.


Why are police suspects so rarely indicted?

While there are not very good data on officer-involved killings, newspaper accounts suggest that grand juries frequently decline to indict law enforcement.officials. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in Texas. Grand juries haven’t indicted a Houston police officer since 2004. And in Dallas, of the 81 police shootings reviewed by Dallas grand juries from 2008 and 2012, only one police officer was indicted.

One argument is that the jury is often swayed by officer testimony, and is quick to give law enforcement officials the benefit of the doubt. There is also the strong potential for prosecutorial bias. In standard cases, the prosecutor is dependent on the assistance of police officers to gather evidence against a civilian suspect, and often works closely with local law enforcement to build the case. But in police shooting cases, the officer is the suspect.The prosecutor may have less incentive in indicting a police officer and risk jeopardizing his or her relationship with the department.

For this reason, some legal experts argue that police shooting cases should be run by specially appointed outside prosecutors rather than district attorneys in an effort to avoid conflict of interest and questions of fairness in the investigation.

Last year, protesters demanded that St. Louis County Prosecuting Attorney Robert McCulloch recuse himself from running the Michael Brown grand jury investigation. McCulloch's father was a St. Louis police officer who was shot and killed in the line of duty in 1964, allegedly by a black man. Additionally, McCulloch's history of police prosecutions reveals a tend of leniency. On a least four previous occasions, his office has presented evidence to a grand jury about police officers who killed suspects in the line of duty, according to an analysis by Missouri Lawyers Weekly. None of the officers in those cases was indicted.

Perhaps the biggest hurdle to an indictment is the law itself. The U.S. Supreme Court justifies the use of deadly force if an officer has a reasonable fear of harm, and most state laws give police pretty wide discretion to use whatever kind of force they believe necessary to protect themselves and to arrest a suspect they believe to be dangerous. These laws largely hinge on an officer's own perception of danger in the heat of the moment. And that significantly raises the bar for an indictment: If an officer can effectively express remorse during testimony and persuade a grand jury that he perceived a deadly threat, than the chances of getting charged drop significantly.

[Editor's note: The following video does a nice job explaining the challenge of indicting police officers. It does, however, convey a certain viewpoint that we neither endorse nor reject.]


So is the Tamir Rice case completely over?

Not quite. Cleveland police officials will still conduct an administrative review of the shooting, which could result in disciplinary action against the involved officers.

There is also an ongoing U.S. Justice Department investigation into whether the officers' willfully violated the victim's civil rights. The burden of proof for bringing federal charges, however, is very high, and unlikely.

Rice's family has also filed last December wrongful death civil lawsuit against the City of Cleveland and the two officers involved, which could result in a monetary reward.









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