Within the past several weeks: a grand jury in Texas refused to hand down charges more serious than perjury against anyone in the mysterious death of Sandra Bland in a jail cell; a Cleveland grand jury refused to bring charges against an officer who shot and killed a 12-year-old boy playing with a toy airgun; and a Chicago grand jury returned murder charges against a white officer who gunned down a black teen — but only after a 13-month-old video of the incident was finally released in November. Without the video, that grand jury might have been as lenient as the juries in Ferguson and Staten Island.
It seems that grand juries no longer deserve the respect we have always given them.
Grand juries have a long history, rooted in liberties granted in the Magna Carta of 1215. By the 17th century, English grand juries could shield themselves from the immediate scrutiny of prosecutors and judges by excluding them from their deliberations.
In the American colonies, grand juries played a part in the American Revolution. A Boston grand jury refused to indict colonists who had led riots against the Stamp Act, which required that a tax be paid on every piece of paper used in the colonies. A Philadelphia grand jury denounced a tea tax that went to British officials and recommended that colonists avoid British goods.
The concept of grand juries that could operate as independent bodies of inquisitors was written into the Constitution as part of the Fifth Amendment, which begins: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…"
As one observer has said, "Grand juries filled a need as a barrier between the powerful and the weak and as a tribunal for which the weak could accuse the powerful of wrongdoing." Grand juries do not determine guilt or innocence.
Robust grand juries have been considered a nuisance by government officials. A New York grand jury brought down the infamous Boss Tweed in the late 19th century, but the corruption of his political club, Tammany Hall, continued into the 20th century. When a "runaway" grand jury exposed evidence that district attorney Thomas Dodge was doing little or nothing to prosecute the organized crime that was said to add as much as 20 percent to the cost of living in New York City, independent prosecutor Thomas E. Dewey took charge. Through a series of grand juries, "Crime Buster Dewey" became a national hero and a Republican Party presidential candidate.
Yet even our constitutional right to independent grand juries had already been undermined. Through a Supreme Court ruling, each state could make its own rules as to grand jury selection and procedures.
In 1946, federal grand juries finally lost the last of their teeth when the Federal Rules of Criminal Procedure were adopted. Rules 6 and 7 expressly denied grand juries any further powers of unrestrained investigation and of independent declarations of findings. Any conclusions a grand jury might wish to present could henceforth be issued only with the blessings of a judge or prosecutor.
It has been said that any prosecutor in front of a grand jury can easily obtain an indictment against a doughnut. There is usually only one witness, a government witness, who will present hearsay evidence of what other witnesses might say. An indictment can be concluded in less than four minutes.
According to the Transactional Records Access Clearinghouse, of 785 federal grand juries convened in 1991, grand juries voted against a criminal indictment in only 16 of 25,943 matters presented to them — a rate of 99.9 percent agreement with prosecutors. It seems quite possible that these 16 instances, in which grand juries failed to indict, may simply have been cases in which prosecutors did not wish to see an indictment go forward.
The cynics among us might easily imagine that this was the case in Ferguson, Staten Island, Cleveland and Waller, Texas. Prosecutors, by and large, are elected officials whose careers could easily go down in flames if they do not have close ties and cooperation from local police departments, which are responsible for collecting the evidence and carrying out the investigations that lead to successful prosecutions.
As for what goes on during a grand jury hearing, we still have this odd rule of "secrecy," which centuries ago protected citizens on a grand jury from the prying eyes of prosecutors, judges and the ruling aristocracy. Today, that rule of secrecy is a privilege for prosecutors. In the event that a prosecutor presents a one-sided view of a possible indictment, no journalist will typically be allowed to review a transcript and expose a lack of impartiality.
In short, the concept of grand juries as barriers between the powerful and the weak, bodies that act as tribunals from which the weak can accuse the powerful of wrongdoing, has been put on its head. Today, grand juries are so controlled by prosecutors that they can serve to weaken the weak by preventing criminal trials — trials that would serve the public interest — from ever taking place.
Jack Reilly is a freelance writer based in Baltimore. His email is firstname.lastname@example.org.