One of my most prophetic statements is that the “law” is what “they” want it to be at any given time. Witness the Dred Scott decision, the Japanese internment cases of World War II, and the Scottsboro and other legal lynching cases.
In 2014, stemming from the series (ongoing since 1619) of unprosecuted crimes against the African American population, we confront the lawlessness, now inherent, of an ancient legal institution, the Grand Jury. My history here may be fuzzy (due to my jail time of four-plus years and subsequently battling the big C)—but hey, there’s always Wikipedia! Nonetheless, my own experiences as a practicing criminal defense lawyer for over 30 years will help in this short essay.
In New York State, people accused of serious crimes (felonies) can be brought before the court by a number of avenues. Most common is the presentation of the case, by the District Attorney, in a rudimentary way, to a Grand Jury, who will then vote on an indictment. (The famous or infamous statement that a Grand Jury will indict a ham sandwich being entirely true.)
As I recall, the Grand Jury was an outgrowth of the Magna Carta, a medieval document that was fought for by the nobles (male and white and born to privilege) in which they won the right to not be thrown in and left forever in a dank and dark prison by the king. They now had the right (habeas corpus) to demand to be heard and judged by their “peers” (equals). Of course, we are not talking “fair” here, just the way it operated.
The functioning of the Grand Jury has not changed a great deal since those days. It is still possible for a defense attorney to present her client and allow him to tell his story (usually in a self-defense case), and there are even those rare instances where the Grand Jury will vote no indictment.
However, the abuse by the Grand Jury in cases such as Michael Brown and Eric Garner, where there is only prosecution testimony, and that is in total control of the District Attorney or prosecuting authorities, is obvious when there can be no presentation of an opposition scenario—they have killed the obvious witnesses. And so, the Grand Jury does what it is best at, following the instructions and demands of the District Attorney, Missouri or Staten Island, N.Y. It is the ham sandwich approach, and there is no blame, no accountability. The police and prosecutors are a single entity, and they have an agenda.
The Grand Jury, in my not so humble view, should be abolished. It is an anachronism, and the miniscule number that benefit from it are not worth the rubber stamp it has become, particularly in the murder of people of color by the police.
A far better solution (short of the revolution we all hope and dream of) is to make those suspected of those heinous crimes stand TRIAL. Let the 12 jurors decide their fate in an open and fully presented evidentiary case. It’s not a perfect solution but far, far better that the endless parade of murderers going free because their victims don’t matter.