Law professor: Prosecutors often use grand juries for political cover
By Kevin Featherly
BridgeTower Media Newswires
MINNEAPOLIS - As he pledged to do in all police-involved cases after the 2015 Jamar Clark shooting, Hennepin County Attorney Mike Freeman will not impanel a grand jury to investigate the death of faith healer Justine Damond. She was shot killed on July 15 by Minneapolis police officer Mohamed Noor, who has refused to speak with investigators.
An informal poll of Minnesota county attorneys shows that, in one sense, Freeman stands alone. He is the only prosecutor among five contacted to firmly shut the door on grand juries in police use-of-force cases.
Three others - Ramsey County's John Choi, St. Louis County's Mark Rubin and Stearns County's Janelle Kendall - either have stopped using grand juries or never used them in the first place. But each reserves the right to impanel one should the need arise.
Only Washington County's Pete Orput makes a positive case for using grand juries in police cases. He says he decides on a "case-by-case basis."
Regardless which approach is chosen, the decision in Minnesota almost always is not to charge. Choi made history last year by becoming the first county attorney in state history to criminally charge a police officer in a fatal shooting. Using a special prosecutor but no grand jury, he charged St. Anthony Police Officer Jeronimo Yanez in last summer's death of Philando Castile.
Yanez was acquitted June 26.
In the past, Choi defended grand juries and used one in the 2016 death of Philip Quinn. It returned a no-bill in that case. Later, under pressure from activists, Choi declined to impanel a grand jury in the Yanez case, and now says he has no plans to do so in the future. Unlike Freeman, however, his decision is not unalterable.
"If there is ever a good reason to use a grand jury, an investigative reason as an example," Choi said, "we'll use it."
Making charging decisions without grand juries is the common practice in many counties, outstate prosecutors contend. In her nearly 20 years as the lead elected prosecutor in Stearns and Mille Lacs counties, Kendall has never impaneled a grand jury in a police case.
When an off-duty police officer shot and killed a man who was randomly stabbing customers at a St. Cloud mall on Sept. 17, 2016, for example, her office decided independently that the officer had committed no crime.
"I think we are elected to make those decisions generally," she said. While it is unlikely she will use grand jury in the future, like Choi, Kendall considers it an open option. "If there is a close call about how the facts and the law apply," Kendall said, "it's a tool that's available."
Rubin said he knows of six officer-involved shootings since 1978. None has ever gone before a grand jury, he said. When Rubin was elected county attorney in 2010, he saw no reason to change that practice.
"I feel that I have enough experience and other prosecutors in my office have enough experience," Rubin said. "We can make that independent prosecutorial decision, like we make every single day of the week, whether or not it's an officer."
Over in Stillwater, Orput takes a different view. "Sometimes things happen where I want citizens from my community to hear the evidence and to decide for themselves," he said. "It's the ultimate in participatory democracy in some regards."
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Competing values
Calling together 23 citizens and giving them the subpoena power to investigate police shootings is a high democratic value. But because grand jury proceedings are secret, that virtue can cancel out another treasured democratic value - transparency.
Orput acknowledges that can be a disadvantage when a grand jury deliberation produces a no-bill and the case never gets aired out at trial.
That happened in 2015, in the police shooting death of Marcus Golden, a case Orput handled for Ramsey County. When that grand jury refused to indict, Orput said, he was bound both by statute and court Rules of Criminal Procedure not to answer reporters' questions or release transcripts, leaving the public in the dark. "That is, I think, the drawback," Orput said.
Ric Simmons is a professor at the Michael E. Mortiz College of Law at The Ohio State University, agrees. In July, he published a scathing report, "The Role of the Prosecutor and the Grand Jury in Police Use of Deadly Force Cases," for the Cleveland State Law Review.
In it, Simmons acknowledges there are two valid purposes for grand juries in police cases. First, they can issue subpoenas to compel reluctant witnesses to testify. Second, grand juries can help, when a prosecutor is uncertain about a witness' reliability, to discover what the witness might say at trial.
But those advantages are far outweighed by a core problem, according to Simmons. Prosecutors often manipulate grand juries and prevent them from being truly independent, he charges. That means prosecutors, naturally reluctant to try the police officers on whom they are professionally dependent, often use grand juries for political cover, he writes.
"A prosecutor who does not want to move forward can claim that the potentially unpopular decision not to press charges was made by the grand jury," the professor wrote in his report.
Contacted by email, Simmons said that until grand jury rules are changed to make them more independent and transparent, Freeman and others like him probably have made the wise move.
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Proposed change
In Minnesota, at least one important grand jury rule change has been proposed. The Minnesota County Attorneys Association in April asked a Supreme Court advisory committee to include new, tailored language in Rule 18 of the Minnesota Court Rules of Criminal Procedure. It would allow prosecutors to disclose a summary of the evidence presented to grand juries after non-indictments in police shootings.
"The attempt was to make it more transparent and [used] in only very specific cases," said Bob Small, the association's executive director. The basic idea, Small said, is to find a way both to keep the public informed and to keep the powerful investigative tool of the grand jury subpoena in prosecutors' hands.
Small does not know whether the advisory committee has adopted the suggestion or plans to request an order from the Supreme Court.
Orput supports the proposal. Freeman has not taken a position. But that is something of a moot point, Freeman said, because he has issued a blanket ban on grand juries in his own cop cases.
Freeman said he does not feel has lost any investigative firepower by foregoing grand juries. In the Clark case, for instance, he said tapped into investigative subpoenas without involving a grand jury.
"I don't think we miss anything, the investigation is always very thorough-that's one of the reasons it takes so long," he said. Most witnesses are eager to testify about police shootings and don't need to be compelled, he said.
When prosecutors make the decisions independently, Freeman said, the public knows who is responsible-a factor that gets lost when anonymous grand juries choose. Going it alone also means the public gets a complete readout of the case file when the decision is not to charge, Freeman said. That also does not happen when grand juries are involved.
That doesn't mean the public is automatically happy with the decision, he added, but at least they have recourse. If the public is vehemently opposed, Freeman said, it can oust that official at the ballot box.
"I'm not afraid of that, but that's the ultimate," Freeman said. "With the grand jury you have no idea who they are. And that gets very frustrating to people."
Published: Mon, Aug 14, 2017
