THE BLOG
12/30/2014 12:24 pm ET Updated Mar 01, 2015

The Real Prejudice Behind the Garner/Brown Decisions

The lack of grand jury indictments in the Michael Brown and Eric Garner cases left thousands maybe even hundreds of thousands, perhaps millions of Americans angry. Many consider the Garner decision most shocking after seeing a disturbing video of his takedown, as he stood, hands in the air, later screaming "I can't breathe," shortly before his air supply cutoff.

While media coverage has focused on the growing discontent over race/police relations in this country, the decisions also shed an important light on the prejudice inherent in this country's grand jury proceedings. I'm speaking from a procedural perspective. Yes, both defendants were police officers. However, the more telling element that these cases have in common, that most others do not, is that both defendants testified on their own behalf, for hours. This is unusual in a grand jury proceeding. Most defendants are never even placed on notice that prosecutors are seeking an indictment against them. It is common not to notify defendants until after a grand jury issues an indictment.

The rules governing grand juries are different in every state but almost uniformly do not require notice to a defendant. Furthermore, grand jury proceedings by their nature, discourage the presentation of a defense. The proceedings are run and ruled by prosecutors who present all of the evidence, often with the help of police officers who compile it. Defendants are not allowed to contest or present their own evidence until trial. But, there is one exception. IF a defendant is notified that he is the subject of a grand jury proceeding, then he does have the right in many states to waive immunity and testify on his own behalf. The request must be made within a specific time frame.

What makes this so inherently prejudicial is that police officers work hand in hand with prosecutors on grand jury indictments of common criminals day in and day out. To start, the officers or at least their union representatives who provide legal counsel are familiar with the rules allowing their testimony. Second, it's safe to assume, the prosecutors in the Garner and Brown cases, provided timely notice to these officers of impending grand jury proceedings. The media coverage alone provided a leg up and both had the advantage of requesting to testify.

Now, consider this: the grand jury members differ from common jurors in that they are selected to serve an entire term and the same few sometimes hear dozens of cases during that term. They are typically representative of a larger geographic area, for example, representative of Missouri's overall demographic but not of Ferguson or representative of the County of New York but not of Staten Island. There is no voir dire process to weed out prejudice or to facilitate the selection of jurors appropriate to the circumstances of a case. Furthermore, because they serve a term, they are very comfortable and familiar with the testimony of police officers. Since defendants typically don't show up to testify, the majority of the testimony comes from police officers. They are the ones who compile and substantiate the evidence presented by prosecutors as they seek indictments of criminals. The term members of a grand jury are used to hearing from officers in the role of good guys, not as defendants.

Now, it's true that many times having a defendant testify can be detrimental. However, this usually results when the defendant does not seem credible, is not likable or is ripped apart by the prosecution on cross-examination. Not the case here. They were familiar faces to the grand jury. Their roles as police officers lent them automatic credibility. After speaking for hours on end, one may argue that it would be near impossible not to be swayed by their testimony. The jurors had to have connected with these officers in some way, when they heard them tell their stories face to face. Never underestimate the expression of intangible emotions. The victims and their families did not have the opportunity to appeal to the grand juries' emotions for hours. The testimonies by those officers and the length of time they testified were calculated efforts that paid off in securing their freedom from prosecution. Whether you agree with the decisions or not, the real prejudice is in the procedure. It favors law enforcement.

The unilateral nature of grand jury proceedings also presents the opportunity that prosecutors may present false evidence. There are now plenty of accusations that key witnesses lied during the Brown grand jury proceedings and that outdated legal instructions were given to jurors. One perfect example of how evidence can be manipulated is in the "Cannibal Cop" case in New York. In the case of a police officer arrested in New York and accused of plotting to kidnap, kill and eat women, prosecutors claimed to a grand jury that there was GPS surveillance evidence placing the officer at specific locations, proving the officer was stalking certain women. This evidence was undoubtedly key in supporting formal charges and thereby securing an indictment. However, such evidence was never presented at trial and prosecutors subsequently deemed the so called GPS surveillance unreliable. The fact that prosecutors may present evidence that even has a chance of being false and prejudicial without any formal judge or defense attorney challenging it, makes the very foundation of grand jury indictments suspect. Many states no longer even use grand juries. This archaic system must be reformed or refused as these landmark cases arise and expose its weaknesses. At the very least, rules should be uniform across the country. Especially since local cases can and are garnering national interest.