Grand Jury

No More Secret Grand Juries in California for Police Abuse Cases

Prosecutors will have to make the call themselves and take responsibility.

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"Not it!"
Credit: bloomsberries / photo on flickr

California Gov. Jerry Brown has signed into law a bill that will ban the use of secret grand juries in cases where a police officer is involved in a shooting or is accused of excessive force that leads to a person's death.

The legislation was inspired when grand juries in Missouri and New York declined to indict police officers accused of killing Michael Brown and Eric Garner, respectively. While transcripts have been released of testimony against Brown's shooter, Darren Wilson, the testimony in the Garner case remains secret. The goal of Senate Bill 227 is to avoid such secrecy in California. From the San Jose Mercury News:

The grand jury ban accomplishes officially what many California district attorneys, including in Santa Clara and Los Angeles counties, are doing already—deciding themselves whether to bring criminal charges against police officers rather than presenting evidence in a closed hearing to a grand jury and letting the panel decide. Only one other state—Connecticut—bans the use of grand juries for all criminal indictments, but that taboo dates back to the early 1980s and has nothing to do with the current protests over the treatment of people of color by police.

Supporters of California's ban, including the legislation's author, state Sen. Holly Mitchell, D-Los Angeles, argued that Senate Bill 227 is necessary to stop even limited use of the grand jury option and to help restore trust in the criminal justice system. They contended that using a grand jury to decide if there is enough evidence to bring charges against cops serves mostly as political cover for district attorneys reluctant to impugn the police officers with whom they work closely and on whom they depend for crucial political support.

Mitchell is also responsible for legislation that would reform and tighten California's asset forfeiture regulations to prevent law enforcement agencies from bypassing the state's restrictions and using (and abusing) the looser federal Department of Justice program. That bill is still making its way through the state's Assembly.

Along with the grand jury ban, Brown also signed legislation to make it officially, legally clear that citizens have the right to photograph and videotape the police in public or in a place where the citizen has a right to be (like in his or her own home). Whether such legislation will actually prevent officers from stopping them or harassing them anyway is another question.

NEXT: Why Are Michigan Prosecutors Reassessing Their Cases Against Medical Marijuana Patients?

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  1. Brown has finally done something good

    1. No, this is absolutely third-world horrible. It pins, through public records, a jury to its decision. It is wide-open invitation for thugs to manipulate juries.

    2. Is that what this is? How would it change anything? The problem with grand juries isn’t that your average layperson is superduper pro-cop. It’s the prosecutors who are overwhelmingly pro-cop and that the grand jury is the prosecutor’s bitch.

      1. The problem with grand juries isn’t that your average layperson is superduper pro-cop.

        I wouldn’t go that far. Show me a person who is superduper pro-cop, and I’ll show you someone who has neither been a victim of a serious crime, nor been accused of a crime. It’s easy to trust the cops when you’ve never seen how little they care about crime victims, or the fraud they will commit in order to railroad someone accused of a victimless crime.

        1. But assuming for a moment that the prosecutors aren’t working hard to dismiss any potential jurors who are not pro-cop, do you think 12 random laypeople have the same institutional incentives to reach a pro-cop verdict that the prosecutor has? 12 randoms might be more pro-cop than you or I, but they almost certainly would be less so than the prosecutor whom is on the same team.

          1. Having recently served on the grand jury I can tell you that at least in this jurisdiction there is no exclusionary proceeding related to selecting grand jury members. So long as it’s not a major imposition on your life, you serve. Prosecutors have no say in selection whatsoever. Also, although I think there is a tendency for most people to assume that police and prosecutors are acting in accordance with the law that didn’t stop jury members from asking excellent questions about evidenciary procedures and due process. Several cases resulted in a ‘no bill’ verdict and neither the police nor prosecutors ever attempted to influence or appeal a decision.

            1. Having recently served on the grand jury I can tell you that at least in this jurisdiction there is no exclusionary proceeding related to selecting grand jury members. So long as it’s not a major imposition on your life, you serve. Prosecutors have no say in selection whatsoever.

              That’s an unusual jurisdiction. Is it safe to assume that grand juries in your jurisdiction are more effective than in the rest of the land?

              1. I can’t comment on anywhere else, but given that we didn’t just ‘rubber stamp’ everything and actually prevented some ‘shoddy’ cases from proceeding, I would say it is effective. Along those lines it’s worth noting that the police officers who testified were VERY differential and professional to the jury which I chose to interpret not as blatant ‘ass kissing’, but as a sign of the importance and seriousness of the proceedings. The vast majority were excellent, but the few who weren’t prepared got roasted and hopefully learned that their cases need to be rock solid before moving forward. I can’t see how eliminating that step in any jurisdiction would improve anything even if it’s not as effective as here in TN.

                1. I was dismissed from a grand jury pool and I had a very very different experience with the selection process. We were lectured at and threatened by the prosecutors during the selection process. They made it clear they wanted no nullifiers, cop skeptics, justice system skeptics, drug war skeptics or those with philosophical objections to any statute in existence in these United States.

                  Tanslated: no libertarianish jurors allowed! If we find out you lied to us, judging by your verdicts, we’ll hurt you.

                  1. “We were lectured at and threatened by the prosecutors during the selection process.”

                    Wow, that’s bullshit. The prosecutor wasn’t allowed in the room during our selection….only the judge and staff. We were told that we had to view cases in the context of the law on the books and not what we wished the law was, but I don’t see that as improper at all.

                    1. Well the impropriety in telling jurors they can’t nullify is that juries are not a statutory entity, they’re a common law institution. In common law, it’s the jury’s job to “discover the law” and since statutes are simply codes that “carry the force of law”, they are not above the requirement to be first “discovered” before it can be applied to a defendants actions and are, strictly speaking, subject to nullification.

        2. The problem with that heat-of-the moment argument is that cops, just like the mafia, can be a gang too. By placing the names and addresses of grand jury members on public record you have green-lighted all organized crime.

          1. By placing the names and addresses of grand jury members on public record you have green-lighted all organized crime.

            From what I’m reading here; California isn’t eliminating the secrecy of a grand jury, it’s abolishing the grand jury outright in police abuse cases. The issue of potentially threatening grand jurors has nothing to with this, I don’t know why people on this thread think juror secrecy is at stake here.

            1. Yeah, I thought the purpose was to abolish the secret jury and make the DA stand on his own hind legs and take responsibility.

      2. At least the prosecutor won’t be able to shift responsibility to the processes of a secret grand jury. “Hey, we made our best case in secret proceedings and we weren’t able to get an indictment.”

        Anything that brings the process into the open or places responsibility on an accountable public figure’s head is a win, I feel.

  2. I guess rather than fixing the broken system that was intended to act as a check on prosecuting the innocent, we just throw it away and let the innocent take their chances.

    At least they won’t have to pretend anymore. So that’s something, at least.

  3. They contended that using a grand jury to decide if there is enough evidence to bring charges against cops serves mostly as political cover for district attorneys reluctant to impugn the police officers with whom they work closely and on whom they depend for crucial political support.

    Looks to me like a clear conflict of interest.

    Whether such legislation will actually prevent officers from stopping them or harassing them anyway is another question.

    Does it include criminal penalties for cops who ignore it? The answer to that question answers the other question.

    1. How does putting thr decision directly on the prosecutor lessen any conflict of interest?

      1. It just removes the fig leaf they’re using. That’s all.

        1. To be more explicit, the decision was always the prosecutor’s to begin with. The grand jury was just a rubber stamp for whichever direction they wanted to take it.

          1. Any member of a grand jury can bring a case (or have a case brought to them by either plaintiffs, defendants, or convicts) for consideration independent of a prosecutor. I’m sure that’s rare, but it’s certainly a check on a wayward prosecutor. It happened twice during the 4 months I served. Also, in a properly run grand jury the prosecutor and their staff are available for informational purposes only. They are not allowed to ‘argue’ in front of the jury. The jury foreman conducts the proceedings entirely independently and reports the decisions to a judge, again, independent of the prosecutor and police officials. What more, the jury has full access to all police and AG/prosecutor records for independent review. It’s not a perfect process and I had similar misgivings before participating, but I came away with the opinion that it is an important and useful part of the judicial process. Any action that subverts this process is a disservice to freedom in my opinion.

      2. If anything it just eliminates an ostensible check on the prosecutor’s conflict of interest.

  4. The law

    http://www.leginfo.ca.gov/pub/…..ptered.pdf

    seems (if I understand correctly) to forbid grand jurors from inquiring into police misconduct, meaning that to prosecute cops, prosecutors have to file the charge directly with the court, with the cop having no opportunity, ever, to have a grand jury hear the case.

    This is not what the Founders envisioned for *any* case, whether cops are involved or not.

    The Fifth Amendment provides that no person shall be tried for “a capital or otherwise infamous crime” unless a grand jury has first indicted him or presented him.

    The U.S. Supreme Court, in the 19th century Hurtado case, has said the states don’t have to obey this part of the Bill of Rights. But the Supreme Court has said the states have to obey most of the *rest* of the Bill of Rights, thanks to the Fourteenth Amendment’s Due Process clause.

    For most criminal defendants, if their case isn’t heard by a grand jury, it won’t be heard by any jury at all, because plea bargains make trial juries rare. So if there’s neither a trial jury nor a grand jury, the citizens will have been removed from any direct responsibility for criminal justice. A triumph for liberty!

    1. I already said this above, but for exactly the reasons you state, this change further empowers the King’s men and is a disservice to liberty…..and is obviously unconstitutional, but that is an archaic document anyway.

      1. The 5th Amendment’s grand jury clause has not been applied to the states. California’s constitution also doesn’t require criminal indictment by grand jury. So not unconstitutional.

  5. California Gov. Jerry Brown has signed into law a bill that will ban the use of secret grand juries in cases where a police officer is involved in a shooting or is accused of excessive force that leads to a person’s death.

    The grand jury isn’t the problem. The problem is the relationship of the prosecutor to the grand jury. Removing the grand jury amounts to abolishing a rubber stamp and replacing it with the prosecutor’s discretion, which is basically what we already have. Gov Brown is saying that 12 or so laypeople are less trustworthy to reach the right decision than Top Men.

    1. The problem is the relationship of the prosecutor to the grand jury.

      Actually, the problem is the relationship between the prosecutor and the police department.

      Prosecutors depends on cooperation with the police in order to do their job. A prosecutor who makes an effort to hold police accountable when they break the law will lose that cooperation and find themselves unable to do their job.

      1. Private prosecutors should be used in cases where the government is the defendant. That solves the prosecutor-cop scissoring. But the problem with the grand jury is nonetheless their relationship to the prosecutor. Forget about a police abuse case. Suppose a prosecutor really wants to nail some guy for a victimless crime like drug possession that the police weren’t really keen on pursuing, the grand jury is supposed to be a check on the prosecutor’s power.

        Changing somehow, the relationship between the prosecutor and police department would not matter at all in that scenario because the prosecutor’s desire for injustice is what drives the case, which is precisely what grand juries are supposed to protect against. Changing the relationship between grand jury and prosecutor is the only way to restore grand juries to their ostensible function.

  6. Man, I’m telling you” Cali could do a lot worse than Brown. He’s also on side with fracking.

  7. OT: You know that heart-healthy margarine the government wants you to eat, instead of evil butter? Yeah, about that.

    The “vilification” of saturated fats dates back to the 1950s when research suggested a link between high dietary saturated fat intake and deaths from heart disease.

    But the study author drew his conclusions on data from six countries, choosing to ignore the data from a further 16, which did not fit with his hypothesis, and which subsequent analysis of all 22 countries’ data.

    … In contrast, consumption of industrial trans fats was associated with a 34 per cent increase in death, a 28 per cent increased risk of death from coronary heart disease, and a 21 per cent increase in the risk of cardiovascular disease.

    It’s almost as if the government gives really bad advice, or something.

    1. The science was settled.

  8. I’m pissed. Here ya go

    917. (a) The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.
    (b) Except as provided in Section 918, the grand jury shall not inquire into an offense that involves a shooting or use of excessive force by a peace officer described in Section 830.1, subdivision (a) of Section 830.2, or Section 830.39, that led to the death of a person being detained or arrested by the peace officer pursuant to Section 836.

    This is flat-out written by cops. Can my petty crimes be exempt from this inquiry too?

  9. We should play a new game called “Is it Tulpa?”

    I’ll start: Is this guy Tulpa?

    Place your bets.

    1. Is Winston Tulpa?

    2. I was ready to say 100%, but the “you people make me sick” ending gives me some doubts. It could just be some conservative coming over here from Facebook or something. But it could very easily be more of Tulpa’s contrarian “help.”

    3. If it is Tulpa, he will post again. And again. And again.

    4. It was a drive-by from a cop fellating Republican.

    5. Isn’t there software that can do this for us?

    1. Sweden, one of the whitest places on earth, has a problem with not enough black people bandaids? Really?

  10. What do you call gavel bangers, the anvil for the gavel to bang on?

    Looks like an “It’s It”, which is my interpretation of the alt-text.

    1. It’s a coaster.

  11. Even with the obsequious deference typically paid by the Judicial to the Legislative, I’m curious if this law will pass constitutional muster. Then again, who would have standing or motive to challenge it?

    1. Any person convicted based on an indictment not coming from a grand jury will have standing to challenge it (and motive).

      The problem is that California grand juries aren’t used that much anymore for criminal indictments, in general. There is no California constitutional requirement that one be used to indict somebody (only that each county have one empaneled) and it’s always been within a DA’s discretion to present a case before one. As such, there is likely already a large body of federal habeas corpus litigation out there focusing on this issue. On top of that, Connecticut apparently doesn’t use grand juries, at all, and hasn’t been slapped down for doing so in the decades it has stopped the practice.

      There may be a constitutional problem with the law only applying to police officers but how could somebody making a showing that the DA, since s/he had the discretion to do so before this law, would have taken the case to a grand jury but for this law (without the DA actually saying so)?

  12. sarcasmic|8.12.15 @ 11:32AM|#

    You should go to hotair.com. The place is full of copsuckers. Bmore over there sucks more cop dick than anyone, but there are plenty of others.

  13. “Free Society|8.12.15 @ 11:50AM|#

    From what I’m reading here; California isn’t eliminating the secrecy of a grand jury, it’s abolishing the grand jury outright in police abuse cases. The issue of potentially threatening grand jurors has nothing to with this, I don’t know why people on this thread think juror secrecy is at stake here.”

    People either have reading comprehension problems or they are skimming the article and not reading it at all, or they are fucking stupid. Take your pick. Here’s an example:

    “If anything it just eliminates an ostensible check on the prosecutor’s conflict of interest.”

    When the author explicitly states in the article: “…using a grand jury to decide if there is enough evidence to bring charges against cops serves mostly as political cover for district attorneys reluctant to impugn the police officers with whom they work closely and on whom they depend for crucial political support.”

    Grand juries give political cover to the corrupt lying thugs known as prosecutors. Comprehension is hard. Thinking is even more difficult.

  14. This assumes that prosecutors who refuse to indict cops are going to face political consequences. That might be true in some places in California, but where I live in Flyover Country, a prosecutor who refuses to bring charges against police will benefit at election time, especially if the cop’s victim is Black.

  15. Seems like decision this can only benefit the police. My wife just sent a police abuse complaint (fraud, conspiracy and much more, but no deaths) to the D.A. and the grand jury. The non lawyer “investigator” for the D.A. called her and said that While mistakes were made by the police, they were just “mistakes” and she could try the civil courts. They are unwilling to prosecute the police. The grand jury on the other hand opened a case file and we will just have to wait to see if they investigate and come to the same conclusion.

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