Counterpoint: Grand juries aren't a check on prosecutors' power

I'm fascinated by grand juries. As a federal prosecutor in the 1990s, I had the opportunity to investigate and present cases against hundreds of people before these assemblages of citizens. In my current job, I get to teach about these ancient bodies at the University of St. Thomas. This spring, in fact, I will lead my criminal practice students through a series of exercises where they will take on the roles of prosecutors, witnesses and grand jurors.

That's why I was so interested to see Ramsey County Sheriff's Deputy Allison Schaber's commentary on Dec. 28 ("Circumventing grand juries in police cases is fraught"). I was disappointed, though, at how much she misinterpreted.

A central premise of the article was that prosecutors circumvent Minnesota law if they charge police officers with a crime without taking the case through a grand jury for an indictment (complaints are issued directly by prosecutors, while indictments come only from a grand jury). Even a cursory review of the Minnesota Rules of Criminal Procedure show that this just isn't true except in rare cases.

Rule 17.01, subdivision 1 sets out that "An offense punishable by life imprisonment must be prosecuted by indictment. ... Any other offense defined by state law may be prosecuted by indictment or by a complaint as provided by Rule 2."

The language is unambiguous: A grand jury indictment is required for cases like first-degree murder, where the penalty is life in prison, but not for all other crimes. Even the most troubling police shootings are rarely (if ever) charged as first-degree murder, which requires premeditation or special circumstances to be present.

Instead, police shootings are much more often charged as second-degree murders (which carry a 40-year maximum sentence, and thus don't require indictment by a grand jury), third-degree murder (with a 25-year maximum) or manslaughter (which carries a 15-year maximum sentence). For these crimes, a complaint filed by the prosecutor is sufficient under the law.

It's also a better and more honest practice to charge these cases outside of the grand jury. While grand jury proceedings are shrouded in secrecy, complaints are public, and local prosecutors — as political figures and political actors — are directly accountable for the choices they make.

It is these Rules of Criminal Procedure that determine the bounds of grand jury use. Schaber points instead to a Minnesota law (Minnesota Statutes 628.61) that directs grand juries to investigate public corruption. But police shootings aren't corruption (which involves dishonesty and fraud) — they are reactive crimes of violence.

Schaber describes the grand jury as an important check on prosecutorial discretion, even claiming that the "grand jury process has a long and honorable tradition with proven independence from the will of the government, including judges and prosecutors." While that was true at one time, the tradition ended a while ago; now, grand juries almost always do what prosecutors want and serve principally as a tool for the government's investigation.

To see this, just look at the federal system, where every felony must be indicted by the grand jury unless that right is waived (in contrast to the small fraction of cases where grand jury indictment is required in Minnesota). According to the most recent data set available from the Bureau of Justice Statistics, in one year (Oct. 1, 2013, through Sept. 30, 2014), 78,155 people were convicted of felonies in federal courts. In that same time period, only 14 people had a proposed indictment rejected by a grand jury.

Looking at facts, we see anything but "proven independence from the will of the government."

Finally, Schaber concludes that charging without a grand jury "undermines the right to due process." Actually, the U.S. Supreme Court has held since 1884 that there is no due process right to a grand jury charge in state proceedings, and the United States is now the only nation that uses grand juries. Even the United Kingdom, from which this grand tradition came, has abandoned it.

The reality is that prosecutors maintain firm control of grand juries and almost always get indictments when they want them. I know this from personal experience — I have been that prosecutor. The problem in our era has been that prosecutors have too often used grand juries as political cover when they want to avoid charging a police officer.

Just as they can steer a grand jury toward an indictment, prosecutors can steer a grand jury away from one. And when they do so in a police shooting case, they avoid personal and political accountability for the decision not to charge.

I wish that grand juries actually performed the function Schaber describes and rejected bad cases. That just isn't reality. In the real world, it is a better thing for prosecutors to openly and transparently make their charging decisions directly.

Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas.