‘The grand jury—which one former jurist said would indict a ham sandwich—has long outlived its usefulness and instead acts as the prosecutor’s puppet.  It is well past time for it to be relegated to the trash heap of history.’

When the COVID-19 pandemic hit New York, one of Gov. Cuomo’s first initiatives was to suspend many of the precious few statutory rights afforded to people accused of crimes.  On March 20, as part of a sweeping suspension of the Criminal Procedure Law, the governor shelved Article 180, eliminating the protection against prolonged pre-trial incarceration on mere hearsay allegations. Before the pandemic, to keep a person incarcerated pre-trial, prosecutors in New York City relied on rubber stamp grand juries—they would present evidence in a secretive proceeding outside the presence of a judge, the accused, their counsel, or the public.  Thanks to the governor’s action, people—almost exclusively people of color—were jailed at Rikers Island for months without even this minimal and superficial review of the nature of the charges against them.  

After allowing people to languish in jail for months, something finally gave way.  The governor adjusted the suspension to Article 180 and paved the way for preliminary hearings to commence while grand juries were on hold due to COVID-19.  At a preliminary hearing, the prosecution has the burden of demonstrating reasonable cause to believe the accused person committed a felony based on live, non-hearsay testimony that is subject to cross-examination and is given in open (virtual) court. 

Courts across the city began scheduling preliminary hearings to determine if there was a basis to continue pre-trial incarceration.  Almost overnight, police officers had to testify under oath and were subjected to cross-examination about what they did and why they did it.  As a result, weaknesses in some cases were exposed and some people were released from jail after a judicial finding that the prosecution had failed to meet its burden of proof. 

It is critical to bear in mind that during this time, the Office of Court Administration had shut down the grand jury due to concerns with assembling many people in one room for weeks at a time in the midst of a global pandemic. 

But earlier this month, New York Chief Judge Janet DiFiore heralded the return of the Grand Jury as if it were a feather in the court system’s cap.  Court administration announced with apparent pride that 8,000 people were to be summoned in the hopes of empaneling people for grand juries to sit in New York City’s antiquated, windowless and poorly ventilated courts.  Now prosecutors could revert to their old ways and skip preliminary hearings and continue a person’s pre-trial incarceration by availing themselves of the grand jury process.

And while those called to court for grand jury service will be rightfully worried about their health and welfare as they travel back and forth to court and sit in a room with upwards of twenty people for hours at a time, the resurrection of the grand jury is ill-advised for other reasons too: The grand jury has long outlived its usefulness and instead acts as the prosecutor’s puppet.  It is well past time for it to be relegated to the trash heap of history.

New York’s former Chief Judge Sol Wachtler 35 years ago proposed abolishing the grand jury system of bringing indictments. Wachtler famously observed that district attorneys hold so much sway over grand juries that they could get them to “indict a ham sandwich,” and that grand juries “operate more often as the prosecutor’s pawn than the citizen’s shield.”  

The origins of the grand jury as a means of instituting criminal proceedings are from 12th century England.  Yet, England abandoned the grand jury over 80 years ago.  Indeed, only a handful of countries still use grand juries.  The United States Supreme Court ruled over 130 years ago that states were not required to use grand juries; instead, states could authorize felony prosecutions via a preliminary hearing.  

While old habits die hard, the ways the grand jury became an instrument of governmental efficiency and prosecutorial power, hastily and dutifully marching to the prosecutor’s beat, began to lead to calls for reform if not abolition.  Federal judge William J. Campbell, former chair of education and training for the Federal Judicial Center, wrote almost 50 years ago that “the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”  Supreme Court Justice William Douglas in 1973 echoed similar sentiments:  “It is indeed common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the government, is now a tool of the executive.”    

Although nominally intended to protect those accused of crime, the grand jury’s willingness to do the prosecutor’s bidding has become undeniable.  One study found that federal prosecutors had close to a 100 percent “success” rate in obtaining indictments when they wanted the accused to be charged.

Prosecutors also exert their power over the grand jury when it seems clear they are not seeking an indictment.  Prime examples include the failure of the grand jury to indict Police Officer Daniel Pantaleo in Staten Island for killing Eric Garner or Police Officer Darren Wilson in Ferguson, Mo., for killing Michael Brown.  While grand juries typically rubber stamp the prosecutor’s request for an indictment, in each of the few cases of police shootings that former Ferguson County DA Robert McCullough reluctantly brought to the grand jury, not a single one resulted in an indictment.  

There are myriad reasons to condemn the grand jury system.  Grand juries operate in secrecy—no judge presides over the prosecutor’s presentation of the evidence, and neither the accused, their counsel, nor the public are permitted to attend.  Furthermore, the prosecutor in the grand jury is not bound by evidentiary and constitutional restrictions.  It is no surprise that critics refer to the grand jury as an anachronism, a tool of government oppression, and a modern-day Star Chamber.

While the criminal court was in pandemic shut-down mode, it eventually turned to preliminary hearings where police officers testified under oath and were subject to cross-examination.  Although not a panacea for all that ails the court, in these proceedings, unlike the secret grand jury, the accused was able to see and hear directly from the police witness.  Preliminary hearings also put police officers on notice that their actions will be subject to public and judicial scrutiny and raise the possibility that corruption might be identified sooner rather than later.

There is a long overdue national recognition that the criminal legal system is a bastion of racism.  The grand jury is a relic of that system.  Resort to a grand jury is optional in many states and some have, finally, abolished grand juries entirely.  New York should follow suit.

Dan Curbelo Zeidman is a Public Defender in New York City.