Not to grossly overuse a damn good quote, but H.L. Mencken famously said,
For every complex problem there is an answer that is clear, simple, and wrong.
Much of the time, people don’t see why an answer is wrong. It seems right to them, notwithstanding the fact that they have a limited, at best, grasp of the nature of the problem. Not that they care enough to expend the effort to truly understand the nature of the problem, but we’re a nation of people with opinions, yet another entitlement, without the concomitant responsibility of knowing what we’re talking about first. Yay, ‘Murica!
Governor Jerry Brown of California has signed a new law.
Gov. Jerry Brown signed legislation Tuesday making California the first state in the nation to ban the use of grand juries to decide whether police officers should face criminal charges when they kill people in the line of duty.
The ban, which will go into effect next year, comes after grand juries in Ferguson, Missouri, and Staten Island, New York, made controversial decisions in secret hearings last year not to bring charges against officers who killed unarmed black men, sparking protests across the country.
Secret hearings? What is happening here in the land of transparency? Since when do we have star chambers? This is outrageous? Burn the witch!
“What the governor’s decision says is, he gets it — the people don’t want secrecy when it comes to officer-involved shootings,” said retired judge and former San Jose independent police auditor LaDoris Cordell, the first African-American appointed as a judge in Northern California and a key supporter of the bill. “We’re not trying to get more officers indicted. We’re saying, ‘Whatever you decide, do it in the open.'”
The failure to indict in Ferguson and Staten Island caused massive confusion across the country, and indeed, still does. There are people who will argue, with absolute certainty, that the released grand jury testimony against Darren Wilson proves Michael Brown deserved to be taken out. It does nothing of the sort, but the depth of understanding required to realize this is well beyond the capacity of those who believe otherwise. It’s not worth the effort to try, as nothing will come of it anyway.
But the problem isn’t that America uses “secret hearings,” as Brown calls them, or grand juries, as the Constitution refers to them. And much as the California solution will appeal to those who have some fuzzy sense that things turned out poorly, so blame the most obvious, and easily curable, thing. Problem solved!
Except it isn’t. A palliative for the masses, who don’t know any better, but the problem remains untouched. Much of this can be blamed on the media, where journalists take at least fifteen minutes boning up on grand juries on Wikipedia before informing the public what went horribly wrong.
Considering this is about twice as long as it takes to become an “expert” on any subject in the internet age, you may not see a problem with this. But when it comes to law-talking stuff, it’s really not adequate. There’s a reason why law school is two years, plus a year of wasted courses like Law and Nietzsche, the only purpose of which is to feed some lawprof’s vanity and suck out the last drop of tuition money.
The rationale behind the existence of grand juries is sound, that a group of citizens determine whether sufficient evidence exists that someone should suffer the indignity of prosecution. It’s done in private to protect the defendant, not conceal the scheme from the public. Don’t smear the defendant by revealing the to public the nasty details of accusations of criminality unless and until it passes muster with the grand jury.
It is meant as a check on prosecutorial power. There is a concept underlying the awesome power to prosecute, that it is not the defendant on trial, but the government. The burden of proof is on the government to prove that a crime has been committed, and the defendant committed it. The defendant need prove nothing. The government, alone, is to be tested.
Well, that’s the theory, anyway.
So what’s gone so horribly awry? It’s not the concept of the grand jury, but that the public has failed to do its job in manning the grand jury. Instead of putting the government to its test, the grand jurors, who are only fed the government’s gruel, are co-opted as part of the crime-fighting machinery of the state.
They don’t see their job as preventing the government from prosecuting undeserving individuals, but promoting the effort of safety and accountability. The grand jurors are not skeptical; they are part of the team, doing their part in a system designed to give the impression of fairness resulting in the conviction of the criminal.
And yet, just the opposite happened in Ferguson and Staten Island. How could this be?
As already discussed at length, here though not by the trusted journalists upon whom the public relies, the failure was the choice of the District Attorneys involved. There were no indictments because the prosecutors chose to make certain that there would be no indictments. They sabotaged their own presentations. There is no question that this is what happened. And no, the Sol Wachtler “ham sandwich” quote will not be relied upon to make the point. It’s trite, already.
So Gov. Brown has correctly identified a problem, not that it was a cool trick. And has identified an answer that is clear, simple and wrong. Get rid of grand juries for cops who kill and you’re left with the same prosecutors who ditched their own presentments. It’s mechanics blaming their tools for their own failures. Bad grand jury is so much easier to swallow than District Attorney who decided that no killer cop was going to trial if he had anything to say about it. And indeed, he did before, and he still will afterward.
“But what’s the downside,” you ask? First, wipe that angry cop-hater look off your face. No sane person is a cop-hater; we hate police abuse and misconduct, and the culture of lies and concealment of wrongdoing. We don’t hate cops. There’s a difference.
The downside is that it eliminates a valuable protection that’s lost its way. The downside is that it’s likely unconstitutional under the Equal Protection clause of the Constitution by singling out a discrete group undeserving of the protections afforded everyone else. It’s a baby step to eliminating grand jury indictment for drug dealers or terrorists.
But most importantly, it leaves the boil festering, uncured despite the feeling that something has been done to fix the problem. The disease is that grand jurors don’t do their job of being skeptical and testing the one-sided accusations presented to them. And for you jury nullification fans, these grand jurors are the ones you bizarrely think will save us from bad law and overcriminalization, but instead spend their time tummy rubbing the prosecutor. These are your neighbors, but they’re not on your team. Grow up.
And the other diseased limb of the system, the prosecutors who are so integrally tied to the police, and realize that the public is so utterly clueless as to be easily manipulated by Official Press Release Number 12, that they will not prosecute a cop for killing someone they agree is a mutt.
Without a grand jury, they will still sit behind the big desk and make the call. If they were inclined to prosecute, their presentment would have reflected it. Without a grand jury, they will just issue the press release about how the evidence fails to sustain the charges. Either way, they won’t prosecute the cop. Problem solved?
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Given how ridiculously obvious it is that the real problem is, as you note, that Grand Juries don’t do their jobs in general and that prosecutor’s deliberately fail to do their jobs when it is a cop in the hot seat, the question arises as to why the Governor, who is not an idiot, and so must know this as well, chose to ignore the real problems and pretend to “fix” it by making an unconstitutional law that doesn’t address either of the real problems.
I could suggest solutions to the actual problems you outlined, but then that would be like sticking my hand in an active toaster to get my eggos out early.
Brown’s a politician, and politics is built on tummy rubs. If the public is clueless, then why bother trying to fix complex problems with hard and sophisticated solutions when a clear, simple and wrong one will keep the bastards happy until the next governor is in office.
How do I become a “grand juror”? Who do I call? Where do I sign up? I’ve never been invited! What’s with that? Who are these grand jurors and where do they come from?
I have been called for regular jury duty more than once, and shown up. They show you a short movie and some paperwork with writing on it. You sit and wait, and sit and wait. Finally they tell you the defendant(s) docketed that day accepted the plea bargain(s) and your services are not needed today. You may go home now, rest assured. Don’t let the door kick you on the way out.
Yup, the system stinks. The Amerikan people are stewpid when it comes to the finer points of the legal system as we know it. We pretend that it works when it does not. It’s batsh!t crazy. Jerry Brown is finished; he’s cooked. He’s been playing politics far too long. And a few others we all can name.
It’s not so much that they are stewpid…they just don’t care, because most victims are black, Hispanic or otherwise out of favor. Call it “plausible deniability” perhaps?
Yea, “we don’t hate cops”, but we do hate it when cops seem to get preferential treatment. In some States, cops (but not mere mortals) get to have lawyers appear in their grand jury during testimony. Not just their own testimony, but during all the grand jury testimony. Then, the law lets their lawyer give a closing after the prosecutor is done. No such rights or privileges for us mere mortals. So when State legislators collude with cops to treat them really special, don’t be surprised when someone says, “crap, we need to do something else, let’s abolish this system for the cops”. Pendulums swing in two directions.
And SHG – if you practice in criminal defense, you may be quite familiar with the nuances of the grand jury system, but for the rest of us, Law & Order scenes & a few minutes mention in high school is likely all we have come across. The same ignorance that permeates why we can’t comprehend the reasons this measure is wrong, also means that we don’t understand that we have rights, duties and responsibilities when we show up in the Grand Jury room for service.
It’s a little wonder the prosecutor and his friends in the legislature have been able to capture the Grand Jury system.
And yet, here I am, writing my little (?) butt off to explain how it works for the benefit of anybody who reads. So the public watches Law & Order? Reads the New York Times? Thinks they got a firm handle on this hole legal system thingy? I’m here. Anybody can read SJ. Should I go door to door, demanding that every American read SJ?
Why doesn’t the New York Times beg me to be a columnist? Why doesn’t some TV network give me a show to talk about law stuff? Why? Instead, I get comments like yours explaining that the public has no clue, so it’s not their fault.
As Ben Franklin said, “we have a republic, if we can keep it.” Citizens have a responsibility to have a clue. If that’s too much work, then we get the shithole we deserve. I’m doing my part.
Whoa…. hold up there buddy.
I never said it’s not their fault if they had no clue. Reasons are not excuses, a point I thought you’d grasp without spelling it out, but it’s pre-coffee time for many, so I’ll let it slide. I’m not going to claim it’s a beneficial use of your time to go door to door, but we may be better off for it. Until then, keep writing, I’ll keep sharing.
And nice donate button.
Or as H.L. Mencken said, “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”
Ironically, Mencken was best friends with the guy who owned my house in the first half of the 20th Century, and I’m told he was a regular guest here.
“Should I go door to door, demanding that every American read SJ?”
Oh hell ya.
You could kickstart it.
Then you’d be like ‘I’m the hero’ and you’d get groupies n stuff like iron man and captain america does, you know the cute ones, not the lawyer ones.
You are so trying to goad me, but I know you’re lying.
I wholeheartedly support your door-to-door plan.
When should I be ready to pour you a beer?
From my perspective:
It’s a gesture, a media play. That said, here in California I know that when DAs are using the grand jury, they’re doing so to fuck around in ways that are harder to detect.
Since there’s no GJ indictment requirement here, it’s relatively rare. The DAs, as a rule, don’t know how to use it properly — and I mean “properly” even from the perspective of a DA. And, frequently, they use it to get up to lawless shit with witnesses. I’m talking about telling people “you can’t take the Fifth to that” and similar hijinks.
So: from my perspective it’s a case of “we’re going to strut for the cameras by arbitrarily saying you can’t use this arbitrarily used tool in this circumstance.”
I agree, and it serves to leave the cancer metastasizing while the public is deluded into believing that all is now right with the world. The failure of faux solutions is that they work great to take the heat off the problem while doing nothing to solve the problem.
By the way, my larger concern is that if this plays well for Brown in CA, it will spread, and infect places where grand juries are mandatory. Like how CA’s inane affirmative consent law was just made into law in NY by Cuomo.
Ken nailed it. As to your larger concern:
Gone from stupid to putrid and stink,
Sacramento’s too brain dead to think.
Do not ask what they do.
“Californicate you!”
Is the answer. I need a stiff drink!
Sure, it’s always about Ken. Ken, Ken, Ken.
For every complex problem there is an answer that is clear, simple, and wrong
I wasn’t really gonna do it anyway.
Too bad. I had images of folks following you literally across the country, much like Forrest Gump.
I’m not gonna tell my wife — she’s making cookies because she thinks you’re coming over.
She making cookies? I like cookies. I love donuts.
Donuts? Sounds like trahison des clercs to me!
Maybe, but they taste so damn good.
You tease!
Who is allowed to present evidence to a grand jury? Is it only the prosecutors?
Only prosecutors. Remember, a grand jury doesn’t try a case, just decides whether the evidence, at its most favorable to the prosecution, is sufficient to go to trial.
Scott, minor typographical error about halfway down:
“Don’t smear the defendant [u]with by[/u] revealing the to public the nasty details of accusations of criminality unless and until it passes muster with the grand jury.”
Thanks. Fixed.
By the way, my larger concern is that if this plays well for Brown in CA, it will spread, and infect places where grand juries are mandatory.
Citizens have a responsibility to have a clue. If that’s too much work, then we get the shithole we deserve. I’m doing my part.
You are helping the citizens to have a clue. One example has been your repeated efforts to point out something early and anticipate the consequences the infection spreading. Very helpful for me. Thanks.