In light of an Ohio grand jury’s recent decision not to indict the police officer who shot and killed 12-year-old Tamir Rice in Cleveland, it’s worth revisiting a Letter to the Editor of the News & Observer from CPSB criminal defense attorney Bradley Bannon following the decision of a Missouri grand jury not to indict the police officer who shot and killed 18-year-old Michael Brown in Ferguson. While reasonable people can disagree about whether evidence supports probable cause for a criminal charge, it is beyond debate that prosecutors control the grand jury. As Brad wrote in the News & Observer in November 2014:
It is disingenuous for anyone familiar with modern American criminal procedure to maintain that the grand jury is, as intended, an independent check on government power. Quite the opposite, it’s an extension of that power.
This is no fault or criticism of the grand jurors themselves, who deserve respect for their sacrifice and service. But they can work with only what they’re given. And that is unilaterally controlled by prosecutors. In secret.
At least in federal court, there’s a transcript of that reality. In states like ours, there’s no record at all. Indeed, in some counties, where dozens of cases can be heard and indictments (drafted by prosecutors) signed by the grand jury in a mere couple of hours, who could type that fast?
So when a grand jury action is cited as if it’s entirely independent of the prosecution, we owe it to ourselves as a society to recognize that just isn’t true. The prosecutor controls the process, and it’s axiomatic that the person who controls the process often controls the outcome.