Steven Platt, The Daily Record Newswire
Two recent grand jury decisions involving the police killings of unarmed black men have sparked protests and demonstrations across the country. While much of the uproar has centered on issues of race, the decisions have also shone a spotlight on the American judicial process, especially with regard to grand juries. As a retired circuit court judge from Prince Georges County Maryland, I have spent many years studying our legal system and am an outspoken proponent of the need to revamp the grand jury process. I have developed a five-step plan for reform. Four of the five could be enacted without the need for legislation.
The five steps include: 1) Eliminate secrecy from grand jury proceedings; 2) Utilize an independent prosecutor in cases involving police officers or public officials; 3) Develop procedures to weed out jurors who harbor racial or other bias; 4) Expedite rulings by limiting the cases seen by a grand jury to the most serious crimes; and 5) Routinely state the purpose of the grand jury and its process. These reforms can be accomplished through a sustained effort by concerned law enforcement professionals and civil rights advocacy groups. These group's interests in these reforms are ironically mutual for different reasons.
Each of the five reforms can be accomplished internally by the courts with the exception of utilizing an independent prosecutor in cases involving police officers or public officials. That reform would require state or federal legislation.
Our grand jury system is based on an English practice that was abandoned by the Brits more than 80 years ago. It is high time that we evaluate whether it works in practice as well as in theory, and particularly whether the secrecy of the proceedings continues to serve the purposes for which it was developed - not the least of which is the protection of the innocent. High-profile cases such as those in Ferguson and New York are emblematic of the potential problems with the system and should be used as a springboard to begin the process.
I first explored this issue in print in a blog, "The Grand Jury; Old Habits, New Truths," which was published seven years ago. My most recent examination of the justice system, "The Separation Of Powers In Maryland And The Right To Counsel - Checks And Balances Or Weights And Measures," was published in the January/February issue of the Maryland Bar Journal. This and other provocative pieces also can be read on my website, A Pursuit of Justice (www.apursuitofjustice.com).
In the wake of the Brown and Garner cases, I am renewing my call for an overhaul of the grand jury system. My ideas center around an effort by the judiciary to assert greater control over its operations in order to increase its accountability.
Specifically, I am calling for an end to the secrecy involving the evidence presented and the deliberations, except when necessary for public safety and/or the safety of the Grand Jurors. Secrecy for the sake of secrecy and without an understandable public policy rationale seriously undermines public trust and confidence in the institution of the grand jury and the criminal justice system as a whole. The judicial branch of government has a direct interest in preventing that from happening. It's a huge problem with the grand jury system. Public confidence is difficult to uphold when proceedings are held in secret.
I also want an independent prosecutor to be automatically appointed by the court in cases in which a local police officer or other law enforcement or public official is suspected or accused of a felony. We need to ensure that the prosecutor has a neutral relationship with the accused because most of the time, in reality, the decision of whether or not to prosecute will be made solely at the discretion of the prosecutor.
The prosecutor decides how much and what evidence the grand jury will consider in each case. That is because the grand jury is a prosecutorial body not an adjudicatory body. The job of the grand jury is to decide whether a person should be prosecuted and tried in a courtroom - not what the result of the trial should be or whether the person is guilty or innocent. That's why the old legal saying "a grand jury will indict a ham sandwich if that's what the prosecutor wants" came into existence.
In cases in which a grand jury is to be summoned by the court, I am in favor of the court administering a written questionnaire under oath to ensure that no one who is otherwise eligible to serve would base his or her decision on whether to indict on race, gender or pre-indictment publicity. This is regularly done in selecting petit juries for trials. The different burden of proof to indict - probable cause - and determine guilt or innocence at a trial - beyond a reasonable doubt - does not make the need for both of those decisions to be equally fair and impartial any less important.
I am also a strong supporter of controlling the volume of cases considered by a grand jury by encouraging the prosecutor (State's Attorney) to utilize a Criminal Information as the routine method of charging an accused with a felony. A Criminal Information is another method of charging a person with a crime. The decision to charge a person with a crime by issuing a Criminal Information is solely that of the prosecutor.
Ninety-five percent of the cases currently brought before a grand jury are routine street crimes. Reducing the number of cases seen by a grand jury will allow the time for a more deliberate investigation by which the grand jury would review the more complex fact patterns which characterize the more incendiary indictments. Finally, I would like clarification, stated publicly at beginning of every grand jury term, of the purpose of the grand jury and its appropriate use for certain cases so that the jury, the public and the media understand the purpose and function of the institution. Comments in the media suggest that the average citizen lacks that basic understanding.
The outrage associated with the Brown and Garner cases is already prompting an inspection of the judicial system in many states as well as on the national level by lawmakers, public figures and private individuals alike. Oprah Winfrey, in a recent People magazine interview, encouraged protesters to focus more on taking steps to find solutions to the problems, rather than just allowing emotions to percolate. Facebook co-founder Dustin Moskovitz and his fiancée Cari Tuna told the Washington Post that they are looking at criminal justice reform as a possible cause to champion with their multi-billion dollar fortune. Their efforts would, in effect, be a "targeted philanthropic effort" to establish a commission to examine the institutions of the criminal justice system, which in their current form need to be repaired or replaced. If government will not or cannot do this on its own initiative here is a potential public/private partnership that can do the job that needs to be done.
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The founding and managing member of The Platt Group, Inc. (www.theplattgroup.com), a group of professionals providing mediation, arbitration and public policy facilitation services, Steven Platt's accolades include an award for "Leadership in The Law" and "Innovator of The Year" from The Daily Record Legal and Business Newspaper. He graduated from the University of Virginia with a B.A. in Government and Public Administration and obtained his J.D. from American University, Washington College of Law.
Published: Thu, Feb 19, 2015
