I have long felt that the historical purpose of the grand jury has been so contorted as to render it meaningless. The grand jury system no longer provides protection for those presumed innocent. Instead, it works as a handmaiden to the prosecutor at best, and a politicized relic at its worst.
Consider how the grand jury functions: Information about a possible crime comes to a district attorney, as it did in the cases of Eric Garner in Staten Island and Michael Brown in Ferguson, Missouri. Witnesses are interviewed, evidence gathered. If the prosecutor concludes that sufficient proof exists to charge an individual with a felony, then he or she goes to the grand jury to obtain an indictment. The same witnesses and the same evidence gathered are presented. The legal adviser to the grand jury is the same district attorney; he or she decides what it will hear. Although the defendant can testify, the defense has no right to present its case, cross-examine witnesses or call witnesses.
To illustrate the perversity of our grand jury system, I noted in an interview shortly after becoming chief judge in January 1985, that, "Any prosecutor who wanted to, could indict a ham sandwich." The remark was not intended to amuse, but to illustrate that prosecutors can often obtain an indictment simply by how they present a case.
The original grand jury convened in medieval England was intended to protect an individual from the awesome prosecutorial power of the crown. Eighty-five years ago, when the English realized that the purpose of the grand jury had evolved into one controlled by the prosecutor, to prosecute instead of protect, it was eliminated. It also has been eliminated by many states, but not New York.
Most prosecutors are responsible professionals. They carefully review and weigh the evidence. They interview witnesses to inform the reliability of testimony, and clarify conflicting information. They also review the mental stability of a defendant to determine whether a diversion program is desirable. If the prosecutor does not believe the evidence would overcome the defendant's presumption of innocence, he should not seek an indictment even if he or she believes the accused is guilty. Conversely, if the prosecutor does believe that the evidence would support a conviction, he or she is obliged to seek an indictment.
But there are prosecutors who abuse the grand jury system by using it to indict, and sometimes overindict, despite the weakness of the case. All too often those indictments are sought because prosecutors wish to cater to public and media demands, even though they know that they will fail to garner a conviction if the case goes to trial. Prosecutors also know that by overindicting, they can extract a plea bargain that will vindicate their having sought an indictment. They seem to forget that the grand jury was established to protect the innocent, not the prosecutors.
Just as cynical an abuse is when a prosecutor believes that a case should not go to trial but feels compelled to seek an indictment before a grand jury because of community and media pressure. Having caved to this pressure, the prosecutor believes he can seek redemption by influencing the grand jury not to indict. In that way, prosecutors believe they can have the best of both worlds. They will have satisfied the demonstrating crowd, and not be saddled with the burden of trying a person they know would not be convicted.
In the Ferguson case, for instance, the prosecutor should not have sought an indictment. After reviewing the evidence he should have known that the proof was not only equivocal but, in some instances, clearly exonerated the police officer. Prosecutor Robert McCulloch was under enormous pressure by demonstrations, opportunists, and some politicians to arrest and indict -- neither of which were appropriate. He should have informed the public that there was insufficient evidence to seek an indictment: If he did not have the political courage to do that, he should have asked for the appointment of a special prosecutor. But he did what he should not have done -- use the grand jury to conduct a mini-trial which put the police officer through an unwarranted ordeal.
In the cases of Garner and now Akai Gurley in Brooklyn, we would have to believe that prosecutors would not have convened grand juries unless they were convinced the evidence would support an indictment. If the submissions to grand juries were simply gestures to appease demonstrators or give political cover to the police, and for no other reason, an accused would have been better served by the appointment of a special prosecutor.
What is often overlooked, however, is that grand jury indictments have an aura of legitimacy. If a prosecutor were to stand before the public and announce a charge made against an individual, it would be looked upon as just that: a charge. The presumption of innocence remains intact. But the announcement of an indictment clothes a prosecutor's charge with the trappings of citizen endorsement. The presumption of innocence gives way to "where there's smoke, there's fire."
New York should do what many states have done. Require a prosecutor who wishes to file a charge to submit affidavits and other documents to prove to a court that probable cause exits. The procedure has been used for years when a search warrant is sought. Then a judge could determine whether the evidence, and affidavits from the same people now required to appear before the grand jury, would constitute probable cause.
The determination would be subject to judicial review and would be open, unlike grand jury proceedings, to public scrutiny. Moreover, we would save the enormous expenditure of time, money and personnel required to submit every felony charge to a grand jury, as is now the law in this state.
I do not favor abolishing the grand jury. As an investigative body, it has served us long and well. There will be cases that will involve organized crime, corruption by public officials or the necessity of testing questionable witnesses. Such cases will be in the minority, but the prosecutor or court ought to have the option to direct prosecution through the grand jury.
New York needs a modern procedure that will save millions of dollars, provide greater protection for the innocent and expedite a process that has become too politicized.
Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.