England abolished grand juries decades ago because they didn't work

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Marco Werman: As we’ve mentioned, the Eric Garner case and Michael Brown’s in Ferguson both ended up before grand juries. In each case, a group of our fellow citizens made the decision not to indict. Most of us don’t really get grand juries. The concept comes from our colonial forebearers in England, but the United Kingdom actually abolished its grand jury system back in 1933. So, why do we in the US still have them? I asked Joshua Rozenberg, a writer based in London, for some historical background.


Joshua Rozenberg: The concept of the grand jury goes back centuries here in England. 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 a community, the people who actually knew the offenders, as we’d call them today, and knew who they were, knew what they were doing and could perhaps help bring them to justice. By the 16th century, it had become more like the body that it is now in the United States, a group of people who listened to prosecution evidence and decide whether a case has been made out. Now, we kept something similar until quite recently, but we abolished the grand jury in 1933, as you say. We now send cases that are serious enough straight to jury trial, and so the evidence is presented to the jury, the defense, of course, argues their side of the case and the jury decides.


Werman: What is your biggest complaint about the use of a grand jury today in 2014?


Rozenberg: The real problem is they are said to be putty in the hands of the persecutory. In other words, the prosecutor can really tell them what he or she wants and they will go along with it -- or that’s what we are told. Of course, we don’t really know because we can’t watch grand juries at work. But the famous New York judge, Sol Wachtler, said in 1985 that district attorneys have so much influence that they could get grand juries to indict a ham sandwich. Of course, it must be even easier to get a sandwich acquitted, if that’s what the district attorney may actually want.


Werman: That quote in mind, what does that suggest to you about these famous non-indictments now in Ferguson and in New York City?


Rozenberg: If the prosecutor presents an evidence that may be inconsistent, then it leaves the grand jury in a very difficult position. The problem is inconsistent evidence. You might get some witnesses who say they saw Darren Wilson, the police officer, shoot Michael Brown and that he wasn’t resisting arrest. Then of course you hear Darren Wilson himself and you hear what he says, and no doubt other officers supported his claim that he was acting in self-defense. So, this was really what we would regard as a trial, but a trial behind closed doors.


Werman: If the Eric Garner case had happened today in the UK without a grand jury, walk us through how his case might have proceeded.


Rozenberg: After any crime, there is a police investigation and the police work closely with crown prosecutors, the equivalent of district attorneys in your system, and the police gather evidence and the prosecutors may say “Well, you really may need a bit more evidence in this area, or you need to speak to that witness.” Eventually the police and prosecutors, working together, put together a case. During this time, the defendant may well be in custody, or may well be on bail, or maybe the defendant may not have even been tracked down at that stage. If there is enough evidence in the view of the prosecutor to charge a defendant, then the defendant is charged, he makes a brief formal public appearance immediately before a magistrate’s court. He is then sent for trial before what we call a crown court, in other words a trial court, where we have a jury of 12 people. But we don’t have any grand jury proceedings, we don’t have any committal proceedings, as we call them. We simply gather the evidence, make sure the defendant knows what the case against him is, and put the evidence to a trial in front of a jury of 12 people.


Werman: So, the grand jury system, it must benefit someone. Why is it still operating in the US, do you think?


Rozenberg: I don’t really know why it does still remain in the United States. Why have this secret procedure in a country that is so keen on open justice and televising courts and jurors getting interviews after trials? Why not have everything out in the open and let both sides say openly, in a public forum, to an ordinary jury, what their arguments are and then let an ordinary jury decide -- obviously they meet in private, but they decide in public, and then we’ll know where we stand and we’ve all heard the evidence.


Werman: A lot of people here are asking the same question. Joshua Rozenberg, thanks very much for joining us.


Rozenberg: It’s a pleasure.