by Bruce Dunlavy              (My blog home page and index of other posts may be found here.)

As I write this, the news and social media are sizzling with discussion of the latest development in the case of Tamir Rice. Rice, you may recall, is the twelve-year-old Cleveland youth who was shot to death by a police officer while holding a toy gun. I outlined the case in a previous post on this blog.

Young Rice was playing with a pellet gun in a public park in Cleveland, prompting an observer to call 911. The responding officers drove directly up to where Rice was standing, and within two seconds jumped from their car and fatally shot him.

There are complicating circumstances. The caller noted that the subject might be a juvenile, and the gun “probably fake,” but that information was not relayed to the responders. At five feet, seven inches, and 190 pounds, Tamir Rice was a large twelve-year-old. The officer who shot him, Timothy Loehmann, had a history of negative outcomes in his police career, having resigned from the Independence, Ohio, Police Department after six months, after being deemed unfit for police service because of his emotional instability when using firearms. He had subsequently been not hired  when he applied to the Cuyahoga County Sheriff’s Department and three other police departments in northeastern Ohio.

The bar for justifiable shooting by a police officer responding to a call is very low. As determined by the U. S. Supreme Court in Graham v. Connor, the officer need only have “reasonable” fear for his safety or that of innocent others in order to use deadly force. Perception, in these circumstances, is reality. Not being a mind-reader, I cannot reliably speculate about what may have been in Loehmann’s mind.

State <b>Grand</b> <b>Jury</b> Expected to Review Rogers County

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This week, a grand jury hearing the case decided not to bring any charges against the officers in the Rice case. This is the second time in a year or so that an Ohio grand jury has refused to indict white law enforcement officers who shot a black subject carrying toy gun. The same result occurred in the Ferguson, Missouri, of the death of Michael Brown.
This came as a surprise not only to some who are not familiar with the standard imposed by Graham v. Connor, but also to most who are unfamiliar with the grand jury process. A grand jury – as opposed to a petit jury, which hears evidence at a trial – is impaneled only to determine whether any charges should be brought against an accused person. The grand jury hears evidence and then returns either a “true bill of indictment,” setting forth charges, or “no true bill of indictment,” bringing no charges.

I am not a lawyer; I am a historian. The history of the grand jury goes far back in English common law. It began in 1166, and was incorporated into the Magna Carta in 1215. The general purpose of the grand jury was to prevent local abuses of the justice system by the rich and powerful, who could hire lawyers independent of local governments in order to make accusations against anyone they didn’t like. The grand jury system derives from the (usually annual) visit to each locality by a representative of the king, who convened local residents to hear any accusations and make judgments about their validity. In other words, it was designed to provide an accused person with a hearing before other ordinary people to determine if there was enough evidence to bring him to trial. Its purpose was to give the national ruler power to defend citizens from local tyrants’ injustices.

This theoretical function declined over time because more effective and consistent methods of assuring relief to the unjustly accused became ubiquitous. Today, the USA is the only major nation which still employs grand juries, and half its States no longer use them at all.

The reason for the decline of the grand jury is a simple one – it had itself become susceptible to local tyrannies. The grand jury is a tool of the prosecutor. Its very nature makes it open to abuses. The hearing is informal, usually without a judge or any attorney for the accused. Only the prosecutor presents evidence, and only that evidence s/he wishes to introduce. The accused is normally not present, nor does anyone speak for him/her or question those giving accusatory evidence. The accused may not present evidence or witnesses in his/her favor except as the prosecutor may allow (and why would s/he?).

In order to allow those presenting evidence comfort to speak freely, and to protect the identity/reputation of the accused should no true bill be returned, grand jury proceedings are held in secret, with no observers, reporters, or witnesses other than those specifically called to testify.
With the process completely in control of the prosecutor, it is no wonder that an old adage has been around since before memory, “A grand jury will indict a ham sandwich.” If the prosecutor wants it to, it usually will. By the same token, if the prosecutor does not want a grand jury to return a true bill, s/he can withhold or present evidence or testimony according to whether it will favor the desired outcome. Unlike a petit jury at a trial, a grand jury only hears one side.

Thus a canny prosecutor can use the grand jury system to get an indictment when s/he has a weak case. Without enough evidence to support probable cause to bring charges, a prosecutor may find it too difficult to get an indictment from a judge, which would require a preliminary hearing in which both sides were heard. A grand jury, however, may respond quite differently. In most cases, an accused can request a hearing before a judge, but the prosecutor does not have to grant the request.
By the same token, a prosecutor seeking no indictment can present such a weak case that a grand jury will return that verdict. In either situation, a prosecutor may use the grand jury to indict or refuse to indict in a highly controversial case in which the prosecutor wishes to hand the decision off to someone else so as not to get his/her hands dirty.

In the Tamir Rice case, as in most cases like it, the grand jury returned the appropriate verdict, given the difficulty of proving that a police officer who says he was in fear of his life or the lives of others was actually not fearful. The officer’s fear need not be justified; it must merely exist.

Considering the misapprehension most laymen have about how the grand jury process works, the minimal instances in which it can accomplish something worthwhile that cannot be accomplished in another way, and the potential for their abuse, maybe it is time for the jurisdictions still using grand juries to re-evaluate whether they should continue to do so. Why have almost all nations and half the American States given them up? Are the interests of justice better served? Perhaps a profound analytical study is warranted.