Written by Caleb M. Pilgrim   

Subject: Why Not Abolish the Grand Jury?


It is not sheer serendipity that former President, George W. Bush, recently deemed the decision by the Staten Island Grand Jury not to indict the white police officers responsible for the chokehold and death of Eric Garner, as "hard to understand". Nor is it fortuitous that former Secretary of State, and former First Lady Hillary Rodham Clinton, a possible 2016 Presidential candidate, should have considered the US justice system "out of balance", and backed federal probes into both the Ferguson and Staten Island cases. What is clear is the fact that the US grand jury system, under the guidance of experienced prosecutors, has miserably failed to ensure that the constitutional and civil rights of victims minorities are legally protected.

Several decades ago, while a graduate student in the UK, I attended a lecture by the late Lord Hailsham, (UK Lord Chancellor). I was initially taken aback, when Hailsham, a man of extraordinary political, judicial, legal, parliamentary, and even military experience, described the American legal system as “that great museum of discarded English legal forms” … (page 38 of Hamlyn Revisited: The British Legal System Today https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Hamlyn_Revisited_The_British_Legal_System_Today.pdf.
Fair to say, Hailsham was critical of the civil jury system. Like Prime Minister Winston Churchill, he was born to an American mother. He was not, however, simply asserting a strident anti-American bias, and seeking to torpedo the typical claims of "American exceptionalism".Rather, he was offering a typically robust analysis of twentieth century UK and comparative legal development.
To illustrate Hailsham’s point as to the US being “that great museum of discarded English legal forms”, the grand jury ceased to function in England in 1933, following enactment of the Administration of Justice (Miscellaneous Provisions) Act 1933... ("An Act to abolish grand juries and amend the law as to the presentment of indictments ..."). Grand juries were subsequently abolished in their entirety in 1948, when the Criminal Justice Act 1948 ("An Act to abolish penal servitude, hard labour ... the sentence of whipping ..."), repealed a savings clause in the 1933 UK legislation retaining grand juries for offences relating to officials abroad.
Today, the United States remains the only country which still retains the grand jury system. No other western country, with a common law tradition, e.g. Canada, Australia, New Zealand, retains the grand jury.
Recent grand jury nullifications in Eric Garner's case in Staten Island, New York, and in Michael Brown's case in Ferguson, Missouri, must therefore concern any thoughtful, civic minded individual concerned with the Rule of Law and progressive development of the law. Relatively widespread, popular dissatisfaction among blacks, whites, minorities, males, females, young, old, students, activists, and across the political spectrum – resulting and culminating in occasional rioting and looting - following the grand jury failure to indict police officer(s), who either intentionally or recklessly kill unarmed civilians - also compels us to consider the usefulness of the current grand jury system(s), and ask whether the time for its abolition has not come.
The refusal of the respective grand juries to return any sort of indictment may well be, in itself, a most astounding indictment of the system.
Time was when we were told that “a grand jury would indict a ham sandwich”. Perhaps, yes! But, not so, where the victim is black. Black lives clearly do not matter in the context of the grand jury. (Curious, also, that the civilian who shot the infamous police assault and murder of Eric Garner should allegedly have recently been indicted by a grand jury in a different matter). We are yet to see what the Cuyahoga County/Cleveland, Ohio, grand jury will do in the case of the murder of 12 year old Tamir Rice by mis-advised, trigger happy white Cleveland police - Tamir was shot 2 seconds after Police Officer Timothy Loehman arrived on the scene. Loehman, barring a particular species of informal affirmative action, and the aristocracy of skin color may well have been rendered otherwise unemployable, based on his previous job performance and his employment record.

Indeed, it is the case that the murder of unarmed black males by the police is nothing new. We are, nevertheless, yet to see any sort of comprehensive statistical data setting out the actual numbers of black men either killed by police, nationally, or how many exactly are the victims of excessive use of force by law enforcement. The WSJ even recently reported that hundreds of killings are not reported in federal stats.

We do not yet know the actual costs of empanelling the grand juries in Ferguson, including the resulting fall-out, and the Staten Island grand jury. What we do know is that the enormous social, economic and financial costs were quite foreseeable.
Most prosecutors are experienced trial lawyers. They are quite capable of indicting any offender, picking up the pieces and bringing the matter to either settlement or speedy trial. They indict every day throughout this country, without any need for a grand jury. They try cases every day.
It is therefore clear that the grand jury, based on Staten Island and Ferguson, except where intended to give the prosecutor a measure of political cover, is a useless sham and an anachronism, a species of legal debris, which ought to be abolished forthwith. Its mandatory secrecy militates against transparency, accountability and the Rule of Law in a democracy. How do we reconcile the mandatory secrecy of grand jury proceedings with the need for transparency and accountability? (Belated, ex-post facto release of transcripts- after the grand jury's decision - is but sheer bogus). Why do we need another layer in a now clearly flawed system of grand jury "prosecutorial discretion"? It used to be axiomatic that "Justice must not only be done, but must be seen to be done"! Based on widespread dissent, not even the most myopic could reasonably, far less unequivocally conclude that justice was either done or "seen to be done" in either Ferguson or Staten Island.

A preliminary hearing to determine probable cause is a more transparent and effective procedure than a secret grand jury to determine if the government should charge an accused with a crime.

Pray tell, how does today's grand jury help conserve what is best in a contemporary American society beset with a multitude of complex issues.

The state grand jury therefore appears, today, a stupid relic, similar to a sabre or rusty cannon of the Civil War era used to fight a contemporary war in defense of our human rights and our civil liberties. The Ferguson and Staten Island Grand Juries are like
an improvised explosive device (IED), an unexploded mine, in the body politic.

It should suffice that where probable cause exists, any rogue police officer, and any defendant(s) – e.g. Officers Wilson and Pantaleo, like anyone else, should at a minimum be charged with murder and tried by criminal jury, without the intervention of a grand jury, in a squalid and unseemly manipulation of the legal system. Intellectually a deadbeat, the state Grand Jury has proved an epic failure in Ferguson and Staten Island. It has outlived its usefulness and ought to be speedily abolished.


Caleb M. Pilgrim, Ph. D (Cantab.,), JD (Yale)
Chair
Greater New Haven Legal Redress Committee
545 Whalley Avenue
New Haven, CT 06511


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