State Sen. John Whitmire has filed legislation to eliminate the “key man” system of selecting grand juries in Texas. But in the wake of national debates of the failures of grand juries to hold police accountable, it’s worth asking whether grand juries oughtn’t be abolished entirely. Public Radio International pointed out that “England abolished grand juries decades ago because they didn’t work.” Here’s a notable excerpt:
The concept [of grand juries] comes from our colonial parent, England. “It goes back centuries here,” explains London-based legal writer Joshua Rozenberg. “In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They’re people who actually knew the offenders, as we’d call them today, and could perhaps bring them to justice.”
By the 16th century, that morphed into the system we’d now recognize as a grand jury: A group of people listening to a prosecutor’s evidence and deciding whether to indict.
But the United Kingdom actually abolished its grand jury system in 1933. “We now send cases that are serious enough straight to jury trial,” Rozenberg says. That way, both sides are able to present evidence and make their arguments, which is definitely not the case with a grand jury.
In fact, the UK exported grand juries to most of their former colonies — Canada, Australia, New Zealand — and virtually all of them have stopped using them.
“They are said to be ‘putty in the hands of the prosecutor.’ In other words, the prosecutor really tells them what he or she wants and they will go along with it,” he says. “Or that’s what we are told, because we don’t really know. We can’t watch grand juries at work.”
That’s why former New York judge Sol Wachtler once famously said that a district attorney could get a grand jury to “indict a ham sandwich.” But, Rozenberg points out, “it must be even easier to get the sandwich acquitted if that is what the district attorney may actually want.”
Whitmire’s bill was reacting to alleged misconduct by grand juries in Houston but the Ferguson and Staten Island episodes (much less a similar episode in Jasper, TX) have cast more light on these shadowy entities than at any point in my lifetime, though their cozy relationship with law enforcement has been well-documented for years. There’s an opportunity now for a more substantive debate about the role of grand juries. Perhaps instead of “reforming” them, Texas should abolish these anachronistic vestiges of colonialism and let elected prosecutors make the decision whether to pursue a case, whether against a cop or a private citizen, since as a practical matter that’s what’s happening, anyway.