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Open To Thinking: The Grand Jury and Civil Rights
A recurring column
by Nick Patricca
2015-01-07

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The grand jury 'no bill' decisions in the cases of the death of Eric Garner ( Staten Island, New York, July 17, 2014 ) and the death of Michael Brown ( Ferguson, Missouri, Aug. 9, 2014 ) through police actions—two unarmed Black men killed by white police officers—have renewed calls to either eliminate or reform the grand jury as a procedure in our USA legal system.

Our grand jury system has been under attack for many decades. This criticism has exceptional urgency because it is essentially part of an emerging civil-rights protest movement that echoes those of the 1960s, which led to the passage of our landmark civil-rights legislation.

On Dec. 11 2014, Rep. Hank Johnson, D-Ga., introduced The Grand Jury Reform Act H.R. 5830 into the U.S. House of Representatives. This act stipulates that a special prosecutor must be appointed in all cases "when reasonable grounds exist to believe that criminal charges should be considered ( a crime was committed ) by the officer/s involved." The bill mandates that probable cause hearings before a judge be open to the public and that federal funds to state and local police authorities be denied to those jurisdictions that fail to comply. [Rep. Hank Johnson website Dec. 12, 2014.]

Distinguished civil-rights attorney and law professor James C. Harrington has called for the total abolishment of the grand jury system in the U.S. Harrington writes: "The United States has had to discard anachronistic institutions throughout its history, and it is now time to bury another—the grand jury . this unworkable relic of the past." [The Monitor, Dec. 10, 2014]

The grand jury ( grand because it has more jurors than the average trial jury ) has two primary powers: the power to indict and the power to investigate. It does not judge guilt. It decides whether there is sufficient evidence to indict ( true bill ) or not to indict ( no bill ).

Sections 7 and 8 of Article One of the Bill of Rights of the Constitution of the State of Illinois require, with some exceptions, grand jury indictments for serious criminal charges. Illinois citizens concerned about grand jury reform should read the Grand Juror Handbook of the State of Illinois ( it is short and well written ): www.state.il.us/court/CircuitCourt/Jury/GrandJuror.asp .

The grand jury enjoys considerable power and latitude. Under its general mandate to make inquiry into crime and corruption within its jurisdiction, the grand jury has the legal authority to subpoena witnesses and documents and to initiate its own investigations independently of the court or the prosecutor.

These legal rights, though rarely exercised, are potentially the key to the effective functioning of grand juries, especially in cases involving the suspected misuse of police power causing significant injury or death to citizens.

Those who object to grand juries as such assert that: they are the passive instruments of the prosecutors; the jurors are not capable of understanding the legal complexities presented to them; and the grand jury system itself adds another layer of inefficiency to a legal system already hobbled by costly and time-wasting procedures.

The grand jury was enshrined in Magna Carta ( reluctantly accepted by King John in 1215 ) precisely to stand between the power of the state and the individual citizen. The grand juror is not meant to be a legal expert. The grand jurors are expected to apply common sense and sound judgment to the matters presented to them. Most importantly, the grand jury has the power to investigate the prosecutor and the court itself if the jurors judge those state agents to be complicit in crime or corruption or the abuse of power.

By statute ( Haw. Rev. Stat. - 612-51 ), the State of Hawaii requires the appointment of at least one independent grand jury counsel to each grand jury. I would like to recommend this reform strategy to those who seek to abolish the grand jury system.

With the assistance of the independent counsel, the grand jury might better understand and employ its powers to investigate, might more readily withstand intimidation by the prosecutor should that occur, might become more active in the process of determining the nature of 'sufficient evidence' in a given case.

Rather than abolish the grand jury or set up alternative juries, why not make the grand jury what it was meant to be—the defender of our civil liberties against the police powers of the state. Make sure the grand juries understand their writs and their rights.

Give this historic 'relic' of our liberty—the grand jury—the tools necessary to do the job.

Nick Patricca is professor emeritus at Loyola University Chicago, president of Chicago Network and playwright emeritus at Victory Gardens Theater.

© nicholas.patricca@gmail.com

© nicholas.patricca@gmail.com


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