Newswise — The use of grand juries leaves the judicial system wide open for intentional prosecutorial sabotage in police shooting cases, said a former federal prosecutor.
The police officer who shot Laquan McDonald in Chicago was charged with first-degree murder, the police superintendent was fired, and the Department of Justice announced it will begin a large-scale investigation into the Chicago Police Department. In Baltimore, a police officer charged in the death of Freddie Gray is standing trial.
“You might think these high-profile cases mark a turning point in the nation’s response to fatal police violence,” said Caren Morrison, associate professor of law at Georgia State University College of Law. “But 1,058 people have been killed by police this year to date alone, and most of the time, no legal charges follow. The prosecutions in the McDonald and Gray cases are actually quite unusual.”
In Georgia alone, 171 people have been shot dead by police since 2010, and there have been zero prosecutions. In these cases, prosecutors go into grand juries alone, without opposing counsel, question witnesses in secret, and only release transcripts of the proceedings in limited circumstances.
“So when grand juries failed to indict the police officers responsible for the deaths of Michael Brown and Eric Garner, the ensuing protests were not just a reaction to the decisions themselves. They were also a reaction to the way these issues of public concern are decided behind closed doors, without explanation,” Morrison said.
A prosecutor’s discretion to pick and choose among cases is absolute, and their reasons may not be second-guessed. Prosecutors also control the evidence the grand jury hears.
“So when a prosecutor says, ‘the grand jury has spoken,’ that usually means that the grand jury has reached the only conclusion the prosecutor allowed it to reach,” Morrison said.
California became the first state to bar grand juries from investigating fatal police use-of-force cases, a rule that will come into effect in the new year.
If states were serious about taking absolute discretion out of the hands of prosecutors, they could mandate that all cases of fatal police violence go to a public hearing to determine whether the case should proceed to trial.
A more transparent process, one that addresses all police homicides, not just the ones that make headlines, would be an improvement, Morrison said.
“After all, we can’t expect investigative journalists to uncover all the mishandled cases,” she said.
Morrison teaches criminal procedure and evidence and is researching how prosecutors handle police violence cases. She served as an assistant U.S. attorney in Eastern District of New York from 2001 to 2006. She has been published in numerous scholarly publications as well as Fortune, Time.com and other popular press. Read the full text of her recent article about police shootings at https://newrepublic.com/article/125489/justice-system-fails-us-police-shootings.
To read more about Morrison and links to law review articles and scholarship, visit http://law.gsu.edu/profile/caren-morrison/.
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