For the second week in a row, a grand jury has decided not to indict a police officer who killed an unarmed black man. The death of Eric Garner is even more troubling than the death of Mike Brown was. Garner’s arrest — with an illegal chokehold by officer Daniel Pantaleo, which was found to be the cause of Garner’s subsequent death — was caught on video, unlike Brown’s death, in which there were contradictions between officer Darren Wilson’s account and those of eyewitnesses. While police bodycams would have shed light on Brown’s death, in Garner’s case, the video failed to lead to an indictment.

What if the problem is not evidentiary — the existence or lack of video footage — but a flaw in the grand jury system itself? Is the current grand jury system capable of handling indictments of police officers? Or should there even be a grand jury stage at all?

The Grand Jury as a Prosecutor’s Monologue

The structure of most American grand jury proceedings is not nearly as well-known as the full trial format that is so familiar from news reports, films, and television shows. Most importantly, a grand jury proceeding is not adversarial the way a trial is.

With a grand jury, the accused lacks many of the rights he normally has at trial — with no right to testify, no right to attend, no right to call witnesses, no right to cross-examine the prosecution’s witnesses, no right to argue that unconstitutionally collected evidence be excluded from the case, and no right even to have a lawyer present. Typically the entire case is put on by the prosecution. There is not even a judge present. It is the prosecution’s show entirely.

Grand jury proceedings are monologues; trials are debates. The proceeding is not even open to the public, and grand jury records are typically placed under seal. The point is not to give the accused a chance to defend himself; it is to force the prosecution to pass a relatively easy test: whether there is sufficient evidence for the case to proceed.

From all this, it may sound like the grand jury system should be more likely to find for the prosecution — and this is indeed the case, by an overwhelming margin. For example, in 2010, there were 162,000 federal prosecutions, and grand juries declined to indict in only 11 of them. Statistics like these are why former New York judge Sol Wachtler once quipped that a prosecutor could get a grand jury “to indict a ham sandwich” — and this line is conventional wisdom among lawyers and judges. Critics on both the left and the right have argued that the grand jury is a mere rubber stamp that should reformed or abolished.

Prosecutors and Police

But the perception of the prosecution-friendly grand jury— well supported by the available data — gets turned on its head when a police officer is the accused.

First, as noted by Ben Casselman at FiveThirtyEight, there is a lack of data on how often grand juries indict police officers, but what we do have is startling. In Dallas from 2008 to 2012, grand juries reviewed 81 police shootings and returned only a single indictment.

Thus the problem may be widespread, rather than just being a result of an availability bias (in this instance, the possibility that stories like Wilson’s and Pantaleo’s are notorious and broadly covered in the media, making them seem more prevalent than they are). There is a dire need for studies on this issue immediately, to determine the exact number of prosecutions brought against police officers and the number of indictments returned by grand juries.  To commission a comprehensive federal study on this subject would be perhaps the greatest last action that departing U.S. Attorney General Eric Holder could make on his way out of office.

Second, one simply cannot ignore the human element to how prosecutions are brought — and who brings them. Prosecutors work with police officers and other law enforcement agents constantly. Officers and agents are typically key witnesses in any prosecution, which means the prosecutors spend hours and hours meeting with those officers, going over the evidence and the officers’ accounts of what happened, and preparing them for hearings and trials. Prosecutors and officers are in many ways co-workers in this respect.

It is entirely reasonable and understandable that prosecutors are inclined to view police officers in a favorable light, to believe them, and to give them the benefit of the doubt. Anything else would be a strange exception to human nature: we are inclined to like those we work with often and to vest their words with greater credibility, all other things being equal. And it is unreasonable to expect a prosecutor to risk her reputation and standing with the officers she works with so often by trying to send one of them to prison.

The Strange “Prosecutions” of Darren Wilson and Daniel Pantaleo

Against this backdrop, the approach taken by the prosecutor in the Wilson case, Bob McCulloch, makes far more sense, even as it remains troubling. Rather than take the standard approach to prosecuting before a grand jury —present only the evidence that shows the guilt of the accused, call only the witnesses who support that case, give the accused no chance to defend himself, etc., taking advantage of the one-sided nature of the proceeding — McCulloch took a very different approach, as described in Vox and elsewhere.

McCulloch let Wilson testify for hours, to tell his side of the story. He sought to show “every scrap of evidence” to the grand jury so that they could decide whether to indict.  Yet that sharp departure from standard grand jury practice was, in effect, an abdication of McCulloch’s prosecutorial role. Rather than present the state’s case and guide the jurors to an indictment, he turned the proceeding into a watered-down jury trial.

Perhaps most disturbing, in his statement announcing the grand jury’s decision, McCulloch editorialized on the credibility of some of the eyewitnesses who claimed that Brown’s hands were up when he was shot (the source of the “hands up, don’t shoot” gesture used by protesters and activists) — with McCulloch saying that some of the witnesses had changed their stories, were unreliable, or were “making it up.”  But this is most definitely not a prosecutor’s job, at least not in public.

A prosecutor must determine the reliability of witnesses and evidence that he plans to present in court, but that determination should be made before presenting a case to the grand jury — or potentially on the eve of trial — and it should be made in the prosecutor’s office, not in public, and most certainly not before the grand jury. Questions of witness reliability are typically made at trial, where the accused has a right to counsel and to cross-examine the witnesses, and where the proceeding is held in public before a judge. McCulloch may have thought he was being helpful by trying to show why the grand jury’s decision was justified, but instead he unwittingly revealed the problems in how the case was prosecuted.

There appear to have been similar problems with the prosecution of the grand jury proceeding in the Pantaleo case.  Rather than focusing on the case against Pantaleo for using a forbidden chokehold move and excessive force against Garner, one witness (a friend of Garner’s who recorded the video of the arrest) told the New York Daily News that prosecutors and jurors seemed focused on Garner’s actions, not Pantaleo’s.

A man he described as a prosecutor “wasn’t even asking no questions about the police officer, he was asking all the questions towards Eric,” Orta said. “What was Eric doing there? Why was Eric there?”

“Nothing pertaining to the cop choking him,” he said.

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Those [jurors] that did pose questions were also more focused on Garner than Pantaleo, he said.

“One grand juror asked me, ‘If you knew he was selling cigarettes why didn’t you tell him the cops was there?’” he said.

If this account is correct, then the prosecution of Pantaleo was clearly flawed — seemingly focused on prosecuting Garner rather than Pantaleo, the actual accused, in a case where there was no evidence that Garner posed a physical threat to the officers.  Garner’s possible misconduct, allegedly selling untaxed cigarettes, was simply not relevant to the proceeding, and all it did was divert jurors’ attention away from the question they were supposed to answer — not whether Pantaleo was guilty or innocent, and certainly not whether Garner was guilty of a crime, but whether there was sufficient evidence for Pantaleo’s prosecution to proceed.

Instead it appears that the prosecutors in the Pantaleo case may have been locked into the mode they normally operate in, a world of good guys (cops) and bad guys (perps).  Yet when a cop is the perp, we expect the prosecutors to switch their habitual loyalties and inclinations, and this is not a reasonable expectation.

How to Fix the System

So how can we seek a greater degree of justice when a police officer is the accused? There is a strong impression that the system is rigged, and this means that even in cases where the officer is actually innocent and a non-indictment was correct, grand juries’ decisions are going to be doubted more and respected less.

If further studies reveal that these problems are indeed widespread, there are at least two potential solutions: (1) turn prosecution of officers over to a special unit devoted only to that task, or (2) dispense with the grand jury system entirely.

1.  A special state prosecution office for law enforcement officials — We should recognize the reality that prosecutors cannot be expected to treat their allies and colleagues in law enforcement the same way they would approach a typical defendant. This is not a fault of prosecutors but of human beings. Instead, prosecutions of police should be carried out by a new, separate department that can specialize in such cases. These departments should be established by the state attorney general in each state, so that the units are not run by local district attorney’s offices — and yet still be managed by experienced prosecutors with sufficient resources and standing to do their jobs. The special unit would handle the case throughout its entire life cycle, including any jury trials needed. This is a reform that could be quickly adopted without making a major change to our current criminal justice system.

2.  Eliminating grand juries entirely — The more drastic solution would be to recognize the somewhat absurd nature of the grand jury system: it effectively serves as a check to prosecution only when a police officer is the defendant.  Yet we go through the charade of running non-police defendants through the proceeding even when we know the outcome in advance, one could argue. If so, then we are wasting millions upon millions of dollars in prosecutorial resources and lost worker productivity for jurors and witnesses — not to mention delaying a true day in court for the accused. (There are many other arguments against the grand jury, but there’s no need to address those here.) Instead, we could skip the step altogether and move directly to the pre-trial phase. If a prosecution is truly frivolous, then the prosecutor has the duty to drop it, or the defendant may move to dismiss — so there would still be checks against overzealous prosecution, and far more effective ones at that. Indeed the defendant’s rights increase exponentially after the grand jury phase is complete, so any accused officer will still be able to defend himself.

Neither of these reforms would be a panacea of course, and there is certainly a chance that such changes would still not have affected the outcomes in the Wilson and Pantaleo cases. And there are certainly larger questions about race, law enforcement, and criminal justice that have to be asked and ultimately answered. But either reform could potentially go a long way toward eliminating the current double-standard, in which most defendants are automatically indicted and yet many officers appear to be exempt from facing the normal prosecutorial process.

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 Tristan Snell is the co-publisher of The Brooklyn Quarterly.