The recent failure to indict the police officers involved in the deaths of Michael Brown and Eric Garner got me thinking about the grand jury system in Indiana. In Indiana, a prosecuting attorney can bring any criminal case through the filing of information (a criminal complaint) or through a grand jury indictment. In Indiana, 5 out of 6 jurors must find probable cause to return an indictment.
Note, in Indiana, ANY criminal case can be initiated by the unilateral filing of information by the prosecutor, including capital murder. No doubt this is one reason why the job of county prosecutor is an elected office. We want the discretion to wield the power of the state to be in the hands of someone who is accountable to the citizens. Of course the electoral system doesn’t always work like it’s supposed to. None of our institutions do.
If you can bring any case by the filing of information, why would you ever want to impanel a grand jury? There are numerous ways to answer that question, and I suspect that every prosecutor would answer that question differently; but I think the number one reason would be to get a sense of the community whether the case should go forward. If you use this philosophy, it just makes sense to provide the grand jury with both sides of the case. When a prosecutor slants the evidence presented to the grand jury, he is putting his thumb on the scales of justice, and the system doesn’t work while it should. In a controversial case, it might be better to use a grand jury to determine whether the case should go forward. When a prosecutor chooses to do this he or she needs to be conscious of the duty of fairness to the defendant, the community and the system. If a prosecutor fails to do this, we the voters need to vote the bum out. That’s our safeguard in the system.
What do you do if you are in a minority, and what you want isn’t what the majority wants? You can’t vote the bum out. That’s a problem. In that case, I can’t think of anything better than protest. If you show the world the injustice you see, perhaps eventually enough people will come around to seeing it your way. The right to protest is as important as any other element in the American system. It should be honored and respected at least as much as our public officials.