Circumventing grand juries in police cases is fraught

The grand jury exists as a check and balance upon the discretion afforded prosecutors in the criminal justice system's charging process. The grand jury system also provides the community with a voice.

The purpose of a grand jury is to review evidence and determine whether probable cause exists to believe that a crime has been committed. In certain situations, the law requires a grand jury to make the determination as to whether criminal charges should be brought. One of those situations is when a public official is accused of a crime. State law affords him or her a review by a grand jury.

In the case of law enforcement officers charged with crimes, this statute would appear to allow only a grand jury to decide if an officer's use of deadly force was justified. A grand jury minimizes personal bias and ensures increased objectivity in the decisionmaking process. The decision by a grand jury to indict a person for a crime is collective, free from politics, emotion or bias.

Only two of the 87 county attorneys in Minnesota have circumvented this law. Ignoring the plain language of Minn. Stat. Sec. 628.61 subd. 3 — which provides that "The grand jury shall inquire ... into the willful and corrupt misconduct in office of all public officers in the county" — Ramsey County Attorney John Choi and Hennepin County Attorney Mike Freeman have unilaterally seized control of charging decisions involving public officials, including law enforcement officers.

Officers are not infallible; the same is certainly true for elected officials. However, all officers are, by state law, entitled to have their actions reviewed in a fair and impartial process.

By deviating from state law, these prosecutors usurp the Legislature's province and deprive officers of due process. These prosecutors further distort the charging process when the grand jury is used not for its intended purpose, but instead is used solely to compel an officer to answer questions.

Direct prosecutorial criminal complaints against police officers have never been challenged in a published court case in Minnesota law, according to my research and a legal authority I have consulted. This stripping away from citizens of a bedrock civic responsibility is a very recent development in Minnesota. It risks permitting the very evil that Sec. 628.61 was created to prevent: politically influenced criminal charging decisions.

The grand jury process has a long and honorable tradition with proven independence from the will of the government, including judges and prosecutors. Grand jurors swear to a weighty oath to "diligently inquire in the alleged offense based on legal proof, without malice, fear or favor … " Grand jurors are prohibited from making decisions based on anything other than the facts.

Prosecutors deviating from state law in this way should be alarming for many reasons. First, when the prosecutors remove grand jurors from the process, they deny citizens one of our most important civic responsibilities — jury duty. Second, prosecutors commandeering the charging process show they have become clouded by political pressures and are placating a small but vocal subset of the community. Their decisions become based on their shortsighted desires to remain in office, increasing their inability to remain apolitical, objective, and independent.

A grand juror's livelihood is not dependent on the outcome of a charging decision, but the same cannot be said for elected county attorneys. Prosecutors' decisions could weigh heavily on future campaigns and fundraising. Ultimately, their charging decisions could affect whether they are re-elected. County attorneys have multiple competing interests — personal and political ambitions, a working relationship with law enforcement, and close ties to special interest groups and community activists, in addition to a political agenda.

A precedent has now been set for county attorneys furthering their own political agendas by refusing to use a grand jury and a neutral prosecutor in cases involving law enforcement. When county attorneys align themselves with "progressive" platforms by publicly condemning officers and backpedaling on endorsements, it further demonstrates their inability to objectively review these types of cases.

In a paper titled "Prosecutors and Officer Involved Fatalities: A Forced Evolution from Tragedy to Advocacy," Choi stated: "… the police endorsement was important. After I had received the police endorsement, I was really happy … really proud of it … I had no idea of how things would evolve, and how I would evolve, and how that relationship with the police would evolve."

In an interview with the St. Paul Pioneer Press discussing his decision to criminally charge an officer with manslaughter, Choi said, "We didn't make a decision about prosecution until after we had gotten the case … I can speak for myself, I started feeling that this case should be charged when I heard the audio [from the squad camera]."

Choi admits to his own bias, arriving at a preconceived conclusion before having all the investigative facts. Notably, this same article said Choi's decision "made history."

Even more concerning is when prosecutors express their disappointment in not convicting public officials. "People were counting on us to deliver justice through the court system and we felt like we had let them down," Choi said after Officer Jeronimo Yanez was acquitted in the death of Philando Castile. True ministers of justice review cases with impartiality, independence and integrity. True ministers of justice do not spurn the integrity of the jury system, the very bedrock of American criminal accountability.

Prosecutors must refrain from making public comments that have the significant likelihood of intensifying public condemnation of the accused. When Choi announced manslaughter charges against Officer Yanez, he stated, "no reasonable officer knowing, seeing, and hearing what officer Yanez did at the time would have used deadly force under these circumstances." Neutral and objective prosecutors should not attempt to sway potential jurors by pre-trying the officer's guilt in the court of public opinion.

While the grand jury process has its critics, it provides more transparency and accountability, and far less potential for political manipulation, than prosecutors unilaterally taking over the charging process. Prosecutors are the only elected officials with unreviewable discretion. This makes any prosecutorial misconduct difficult to detect.

Only a truly neutral prosecutor, one with a demonstrated history of decisions based only on facts and not on the political climate, should present cases to a grand jury. As a further safeguard, it would be prudent to conflict out cases where prosecutors work regularly with the involved agency. For example, it was puzzling and unseemly for Mike Freeman to prosecute Minneapolis Officer Mohammed Noor. The attacks in that case made by the Hennepin County attorney upon the involved officers have caused deep and lasting rifts in that department.

The county's chief judge, an apolitical elected official with a duty to guarantee impartiality in a case, should decide on the appointment of such independent prosecutors. To increase transparency, grand jury transcripts could be made public while protecting the identities of grand jurors.

Freeman said "…grand juries may no longer serve the present evolving standards of justice, accountability and transparency…" Statements like this disrespect existing legal requirements and diminish the role of citizens in our criminal justice system. Prosecutors becoming sole decisionmakers undermine the right to due process.

For justice to be served, politics should have no place in charging decisions.

Allison Schaber is president of the Ramsey County Deputy Sheriff's Union. She is at aschaber@rcsofederation.com.