The issue of homicide by police officers has been on a lot of minds since the killings, last year, of Michael Brown in Ferguson, Missouri, and Eric Garner, here in New York. In both cases, grand juries failed to indict the officers involved and – given the opinion of a former Chief Judge that a competent district attorney could get a grand jury to “indict a ham sandwich” – it was widely assumed that prosecutors had rigged the proceedings. (For instance, a British publication, The Independent, published an article under the headline “A grand jury could ‘indict a ham sandwich’, but apparently not a white police officer.”)
To quote Judge Lippman (at page 2 of the State of the Judiciary address):
Of immediate concern are the perceptions of some that prosecutors’ offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters.
To counter this ‘perception’, Judge Lippman recommended that in cases involving police officers accused of felony assault or homicide against a civilian,
a judge be physically present in the grand jury room to preside over the matter. The judge would be present to provide legal rulings, ask questions of witnesses, decide along with the grand jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the grand jury deliberates.
In order that justice not only be done, but ‘be seen to be done‘, the Chief Judge also proposed making certain grand jury evidence public after the proceeding is concluded.
The state’s prosecutors seem to have been stung by Judge Lippman’s remarks. A Times Union article quotes Robert M. Carney, the District Attorney of Schenectady County, as saying that “I haven’t talked to any of my colleagues, but I can’t imagine any of them are going to look at that say that it is a good idea” [sic].
According to Mr. Carney, “it would violate the separation of powers in the legal system to have judges so involved in the grand jury process that they order witnesses.” He points out that “they’re not prosecutors.”
This is a very interesting point of view, but represents a fundamental misconception of the role of the grand jury – and of the role the prosecutor should have in it.
The grand jury is an ancient institution, older even than the 800-year-old concept of habeas corpus, which we discussed last year. It’s many centuries older than the concept of a professional prosecutor. The grand jury has apparently fallen out of favor in the rest of the english-speaking world (we’re willing to take Wikipedia’s word for the state of foreign law), but it’s alive and well here.
The institution is enshrined in the Fifth Amendment to the US Constitution, and the New York State Constitution, in Section 6 of Article 1, says that “[n]o person shall be held to answer for a capital or otherwise infamous crime … unless on indictment of a grand jury”.
The grand jury, as the Court of Appeals has noted, acts as “`the shield of innocence * * * and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source'”. The idea is that before the government can prosecute someone for a serious offense, an impartial panel of citizens must conclude that “it is reasonably likely that such offense was committed and that [the accused] committed it”
As to the role of the judge or the prosecutor in the deliberations of the grand jury, Section 190.25 of New York’s Criminal Procedure Law, declares that “[t]he legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source.” It goes on to state that “[w]here necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes.”
In other words, the law doesn’t distinguish between the role of the court and the role of the district attorney. In fact, the role of the prosecutor in the grand jury – described in the venerable Matter of Schumer v. Holtzman as ‘quasi-judicial’ – is essentially that of an investigating judge in the inquisitorial system found in continental Europe and elsewhere.
So the real question isn’t whether you’re going to have a judge in the room: when it comes to the grand jury, the prosecutor is a judge for all intents and purposes – the question is whether you’re also going to have a judge in the room who doesn’t have an obvious agenda.