Grand juries are built to be a tool of prosecutors. They don’t hear from both sides in a case, like a trial jury would. They hear only from the prosecutor, who decides what evidence and testimony is presented.
That’s why the old saying goes that a grand jury will “
indict a ham sandwich” if a prosecutor tells them to — because the prosecutor calls the shots. That saying, however, assumes the prosecutor wants to prosecute and, ultimately, secure a conviction.
The Rice case strongly suggests that the opposite is also true — grand juries will let the sandwich walk, if that’s what the prosecutor wants. In this case, McGinty used the grand jury as more of a sounding board for an exoneration of the potential defendants, rather than as a review of possible charges against them.
His
70-page report reads like defense counsel brief, not a neutral assessment of potential charges. (It even has headings like “Officers Loehmann and Garmback’s subsequent statements are consistent with the evidence in this case” and “The incident conforms to the Cleveland Police Department’s active shooter policy.”)
This approach — using the grand jury to review arguments on behalf of potential police defendants, not to prosecute them — fits the model of several recent inquiries of police shootings.
Just last week, Texas prosecutors
announced that a grand jury declined to charge any Waller County jail officials in the death of Sandra Bland, a 28-year-old woman who was arrested after a routine traffic stop
caught on video and was later found dead in her cell. Jail staff said they discovered her hanging by a plastic bag, an apparent suicide. Her family maintains that the circumstances are suspicious.
Prosecutors convened the grand jury to consider potential charges against the jail staff but then
said they already concluded that her death was a suicide.
Which makes no sense.
If Bland killed herself, there is no crime to charge. The grand jury should have no charges to bring, and nothing to review.
If prosecutors believed she was killed, then they should have presented those charges to the grand jury. But the Texas prosecutors gave away their game by saying, essentially, that they asked jurors to consider potential charges for a crime they say
didn’t happen. If that sounds hard to follow, it is, because the prosecutors are obfuscating on purpose.
Prosecutors in these cases hide behind the grand jury process, one that is supposedly independent, while pushing grand jurors toward their decision, all the while claiming that juries might have reached different conclusions.
As a legal process, it’s reminiscent of those maddening
staircase sketches by M.C. Escher, with each flight of stairs collapsing into another flight of stairs, an endless optical illusion. You can’t follow the logic because there is none.