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The View From Up North: Grand Jury System Ain’t So Grand

What’s the number one thing we’ve recently learned about America’s grand jury system? It ain’t so grand.

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What’s the number one thing we’ve recently learned about America’s grand jury system? It ain’t so grand.

Ferguson erupted in violence after a not-so-grand jury failed to indict the officer who shot Michael Brown. Protests sprung up all over America after another grand jury failed to indict any of the officers in the Eric Garner homicide.

In Ontario, our system is pretty simple. Essentially, police investigate and charge; prosecutors prosecute. The Special Investigations Unit (SIU), an independent, civilian body, investigates all incidents where an officer’s conduct results in serious harm or death. After the investigation, the SIU decides whether to charge the officer or not. If so, it is turned over to the Crown Attorney’s Office for prosecution.

If an accused is charged with a summary conviction offense (i.e., something relatively minor), the matter will be handled by a judge in the Ontario Court of Justice (the OCJ). If the accused is charged with an indictable offense, which is considered more serious, she will have to make several elections. First off, the accused can elect a trial in the OCJ or the Superior Court of Justice. If she chooses the OCJ, a judge alone will handle it. If she elects the Superior Court, she has to further decide whether to appear before a judge only or a judge and jury. Additionally, the accused has to decide whether to have a preliminary trial or not.

A preliminary trial is very much like the grand jury system, except the prelim (as the insiders call it) happens in front of a judge. Why would the accused choose a prelim? It forces the prosecution to put some or all of its evidence on display. Remember, Canadian law requires the prosecution to share all of its evidence with the defense. Thus, a prelim is not so much about seeing all the evidence, but seeing how it presents.

The threshold for sending the matter to a full-blown trial is fairly low. It is not “beyond a reasonable doubt.” It’s “Is there some evidence upon which a reasonable jury properly instructed can convict?” Note that the prelim judge does not assess witness credibility (which is crucial at trial).

One thing to keep in mind: our prosecutors are appointed, not elected. At the state level, some District Attorneys are elected. They have to prove to the world they’re “tough on crime.” I have spoken with Canadian prosecutors who say their job is to seek justice, not convictions. I get the real sense American prosecutors (whether elected or appointed) are very much about putting bad guys in jail — and reminding people about it.

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Let’s look at the grand jury system.

The grand jury is made up of ordinary citizens that are summoned for duty. Assuming they have no disqualifications, they are put into a pool and then randomly selected to sit on a panel. The jury usually consists of 23 people (hence a “grand” jury).

Whereas Canadian preliminary trials are held in open court in front of a judge, grand juries sit in secret. There is no judge involved. The grand jury has the power to subpoena witnesses and documents. The process is led by the prosecution, which puts forward whatever evidence it chooses.

The threshold for sending the matter to a full-blown trial is, like Canada, quite low — much lower than reasonable doubt. Twelve jurors have to vote to indict in order to issue an indictment.

Here is the most interesting part of the system in my mind. I heard Harvard professor Ronald Sullivan speaking on CBC’s The Current. He said, “There’s a famous saying that grand juries will indict a ham sandwich if the prosecutor asks it to do so.”

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Wow. Let’s meditate on that for a second. The prosecutor has that much control over the grand jury? Is it like a Jedi mind trick?

Prosecutor: “You don’t need to indict this police officer.”

Jury Foreman: “We don’t need to indict this police officer.”

Prosecutor: “You should get me another coffee.”

Jury Foreman: “Can I get you a coffee, Mr. Prosecutor?”

The grand jury system was apparently designed to provide independent oversight of prosecutors. For all federal matters (and many states, as well), the prosecutor has to satisfy a grand jury he’s not abusing his power by bringing malicious or frivolous charges against citizens. That’s why the “ham sandwich” comment is concerning. It would appear grand juries are failing that primary duty if the prosecutor has so much control he can essentially indict any sandwich, sorry, person, he wants.

I have some theories on the U.S. criminal justice system:

1. The police and the prosecutors work very much hand in hand. They are on the same “side.” I would think there might be an unspoken (or maybe even spoken) pressure on prosecutors to shield the police (they’re both after the bad guys, after all). In smaller districts, prosecutors and police officers might be friends and peers. I can imagine police being very hostile to prosecutors who don’t protect them. I can envision whispered conversations like, “C’mon, Officer So and So is a good cop. He was just doing his job protecting the public. Are you really going to send him to jail for doing his job? It was an unfortunate situation.”

2. When a white police officer kills a black man, the prosecutor must send it to a grand jury in anything but the clearest case that the police officer acted reasonably. This is a political reality.

3. Except in cases where the officer unmistakably committed unjustified murder, the prosecutors are inclined to give police the benefit of the doubt. Even in marginal cases (e.g., where an officer does not follow his training), there is systemic pressure on the prosecutor to protect his/her “teammate.”

4. Because a prosecutor can ham sandwich the grand jury system, he can bring a police shooting before the grand jury, present the evidence that forces the grand jury to come to the result the prosecutor wants (i.e., do not indict the officer), then let the system take the blame.

In many cases, the prosecutor only produces one witness for the grand jury — the police officer who made the arrest, for example. In both Ferguson and Staten Island, the prosecutors presented an overwhelming amount of evidence. For Staten Island, District Attorney Dan Donovan presented 50 witnesses!

It is rare for someone under investigation to appear in front of a grand jury. In fact, because of grand jury secrecy, people under investigation often don’t know they’re being targeted. In the Staten Island case, Dan Pantaleo, the officer who choked Mr. Garner, testified in front of the grand jury. He apparently told the jurors he did not intend to harm Mr. Garner.

There have been criticisms in both Ferguson and Staten Island that prosecutors handled the grand jury differently than they would have if they wanted an indictment.

Anybody else reminded of Louisiana back in the day?

Could this happen in Canada? Less likely. Let’s focus on Ontario again. It is the only province that has an SIU completely independent from the police. That provides an extra layer of transparency to investigate serious police misconduct.

I talked with an Ontario Crown Attorney who said if the SIU charged an officer in his region, a prosecutor would float in from another region to handle the case. In very high-profile cases, the province might request a special prosecutor from another province to handle the case to avoid any appearance of bias.

The Crown Attorney also made another interesting point. He said, yes, prosecutors and police are on the same team. But, the attitude in Ontario is once you break the law, you’ve left the team. It seems police, at least in Ontario, are held to a very high standard of conduct. There is little forgiveness for police misconduct.

Nor should there be.

That’s the View From Up North. Have a great week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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