Why is it so hard to indict police?
Grand jurors’ tendency to trust law enforcement officials and the ability of government attorneys to present evidence in a positive light contributes to difficulties in indicting police officers.
Photo by Michael Fleshman (Flickr)
There has been much to-do surrounding the recent grand jury decisions not to charge Officer Darren Wilson in connection with the death of Michael Brown in Missouri and Officer Daniel Pantaleo for the death of Eric Garner in New York. Some feel these police officers should have been indicted for their actions and trials conducted, while others agree with the grand juries in both cases that allowed the men to walk free. History, however, has shown that it has been difficult to indict police officers for excessive force for various reasons.
An indictment by a grand jury serves as recognition of probable cause, the truth of which must be determined at trial.
When the public interest so requires, a grand jury must be summoned by the court to determine whether probable cause exists for a particular case to go to trial. A grand jury has a more specialized function than that of a typical twelve-person jury at a trial. A grand jury must indict the accused in order for the case to go to trial. An indictment by a grand jury serves as recognition of probable cause, the truth of which must be determined at trial.
Rule 6 of the Federal Rules of Criminal Procedure deals with the grand jury processes for federal courts. The Federal Rules of Criminal Procedure state that the grand jury proceedings must be kept secret and are composed of sixteen to twenty-three members. Twelve members must vote in favor of an indictment for an indictment to be issued. The states may choose their rules regarding the number of grand jurors and the number in favor necessary for an indictment. The Rules state that only the attorney(s) for the government, the witness being questioned, and a court reporter or operator of a recording device may be present during the proceedings. When necessary, an interpreter may also be present.
The attorney for the government will present evidence to the grand jury so the members can determine whether probable cause exists regarding the guilt of an individual and whether they should be put on trial for the crime. If a grand jury determines there is enough evidence and probable cause exists, the grand jury issues an indictment against the particular defendant. If the grand jury does not find probable cause, no indictment will be issued and charges for the particular crime not brought against that defendant.
When the decisions to not indict the officers were announced, riots erupted across the country which predominantly claimed civil rights violations as their cause.
A grand jury in St. Louis County, Missouri unanimously voted on November 24, 2014 not to indict Officer Darren Wilson for the death of Michael Brown. Wilson shot and killed Brown during a confrontation on August 9, the circumstances of which were thoroughly examined in twenty-five days of grand jury meetings. That grand jury consisted of twelve members, nine of which needed to be in favor of an indictment for an indictment to be issued.
Less than two weeks later, a grand jury in Staten Island, New York decided not to indict Officer Daniel Pantaleo for the death of Eric Garner. On July 17, 2014, Garner was approached by a group of police officers who believed that he was selling untaxed cigarettes. During the ensuing altercation, Pantaleo put Garner in a chokehold that had previously been prohibited by the New York Police Department. Eric Garner died later that day as a result of the compression on his neck and chest.
Public outcry in response to these two situations, combined with the possibility of civil rights violations connected with the deaths of two African American men at the hands of white police officers, necessitated a grand jury decision in both cases. When the decisions to not indict the officers were announced, riots erupted across the country which predominantly claimed civil rights violations as their cause. Not only was the outrage caused by the potential civil rights violations, but also due to a belief that the prosecutors biased the grand jury process by the way they presented the evidence to the grand juries and the witnesses they called.
History has shown that it is particularly difficult to indict police officers in cases related to the use of excessive force.
The concerns brought up by the most recent grand jury refusals to indict are not new, rather these are concerns that have consistently been argued by critics of the grand jury process. History has shown that it is particularly difficult to indict police officers in cases related to the use of excessive force. The United States Supreme Court set the standard for the use of excessive for in the 1989 case of Graham v. Connor.
The Supreme Court ruled that when considering whether an officer has used excessive force in a particular situation, the standard is that the amount of force used must be reasonable under the circumstances. The Court further stated that the reasonableness shall be judged from the perspective of an officer on the scene, not in hindsight. The reason for this decision is that officers are often forced to make split-second judgments and decisions in various tense, uncertain, and even dangerous situations.
Despite the Supreme Court’s decision, many are concerned with the bias of the attorneys representing the government in cases against police officers. Such concern comes from the nature of the grand jury proceedings and who is present. As mentioned above, the Federal Rules of Criminal Procedure permit only the witnesses, the members of the grand jury, a court reporter or recorder, and the attorney(s) for the government to be present at the time of the proceeding. The attorney(s) for the government, too, are the ones who have a say in who is called and what evidence is brought before the members of the grand jury.
Many believe this allows an unfair advantage to the government in that it permits the attorney to set the course of the proceeding and in a way, cause the result they desire. Any bias or prejudice the attorney(s) may have would come out in how they bring the evidence, and have an effect on the result of the grand jury proceeding. It is also a concern that the attorneys for the government have an incentive to not antagonize police officers as they work with them on many cases and on a daily basis.
Similarly, another concern is that the grand jury members treat the police officers in a manner as though they are “super citizens,” and are often given the benefit of the doubt. Due to the nature of police officers and their role in society and in the community, it is not uncommon for people to believe that officers made the best decision in their particular situation. This is not only the case for police officers, but can be said about other professionals in their field. Since the ordinary person is not trained the profession, they do not understand the trainings or policies of the profession. This unfamiliarity makes it is common for members of the grand jury to believe police officers, or believe they made the best decision in the particular situation.
These potential reforms represent the fears many have that indicting a police officer is nearly impossible…
In response to these concerns, some are calling for reforms to the grand jury process. In particular, New York is considering legislation that would provide for a separate commission to deal with cases where civilians are killed or harmed by police officers. Another suggestion is to require that an independent counselor be present at the grand jury proceedings to counsel the grand jurors in such cases. The presence of the independent counselor would defuse claims of prosecutor bias since another voice would be present at the proceedings to ensure the grand jury understood their role.
These potential reforms represent the fears many have that indicting a police officer is nearly impossible because of the high esteem in which officers are often held and the ability of government attorneys to present the information to the grand jury in a biased manner. Whether reforms will be successful has yet to be seen, but it is likely those reforms will take place, if at all, at the state level before anything occurs at the federal level.
