By Holly J. Mitchell
We are at a critical juncture in terms of how we look at, implement and advocate for criminal and restorative justice. This reality plays out no more ominously than when a grand jury is called to evaluate a death resulting from shooting or the use of excessive force — and the accused is an officer. To the public which has witnessed these incidents, the outcome of a grand jury proceeding can seem inexplicable, and at worst, unjust.
Under California law, all felony cases which go to a trial by jury must first undergo a screening process consisting of either a “preliminary examination” or an “indictment” by a grand jury. The choice as to which route is taken is up to the prosecutor alone. In most cases, the prosecutor elects to proceed by a preliminary hearing, which is conducted in open court by a judge who decides, after hearing the testimony of witnesses presented by the prosecutor and/or defense, whether there is sufficient evidence (“probable cause”) for the case to proceed to trial. In a small number of cases, the prosecution decides instead to proceed by way of a grand jury, which hears evidence presented by the prosecutor, behind closed doors, without the presence of a judge or criminal defense lawyer, who then asks the grand jury to return an indictment.
Because the prosecution is in sole control of what evidence is presented to the grand jury, the grand jury process is often considered a creature of the prosecution, giving rise to the saying that the grand jury “would indict a ham sandwich” if asked to do so by a prosecutor. Where the prosecutor is motivated to ask the grand jury for an indictment, doing so is relatively easy in the grand jury environment. A serious problem arises, however, in cases where the accused is a police officer, with whom the prosecutor collaborates closely on a day-to-day basis to build its cases. It is to these rare situations — and only ones in which “a death resulted from a shooting or use of excessive force by the police” — that SB 227 is directed.
One doesn’t have to be a lawyer to understand why SB 227 makes sense. The use of the criminal grand jury process, and the refusal to indict as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system. While not all shortcomings in our criminal justice process can be solved so easily, this one about due process can. There needs to be greater accountability and transparency, and SB 227 is a small step in the direction of creating a process which is fair, and viewed as fair, by all sides.