By Ken Mondschein
Protests erupted anew across the United States after a grand jury in Louisville, Kentucky refused to hand down criminal indictments for the killing of Breonna Taylor by three white police officers. Black Lives Matter advocates rightfully see this as a miscarriage of justice, but prosecutors were adamant: As the police were executing a properly-issued search warrant—never mind that it was a no-knock raid on an innocent woman’s apartment in the middle of the night, in the context of a systemically racist society that unequally polices people of color—what they did, however horrific and tragic, was not a crime. Much as in the 2014 killings of Michael Brown, Eric Garner, and Tamir Rice, where grand juries refused to hand down indictments, the Louisville grand jury, at prosecutors’ direction, found that the police officers, as agents of the state, were acting within the law.
This, of course, begs the question: What is a grand jury, and how did this institution—originally designed as a check to rampant, unjust state power—come under the dominion of prosecutors and police?
Though a grand jury is today unique to the American legal system, it is ultimately derived from medieval English law. In fact, it retains the same function that it did in medieval law: To report indictable offenses to those in charge of prosecuting them. (See my Public Medievalist piece here, on the office of sheriff as another aspect of “Anglo-American” law, and my previous Medievalists.net piece for more history and a suggestion on how elected sheriffs might be a solution to unequal law enforcement.) It is called a grand jury, incidentally, since it has more members than the petit trial jury of 12 people.
The grand jury’s origins date back to Henry II’s 1166 Assize of Claredon, which specified that the notables of each shire had to testify to the king’s iterant magistrates under oath (juré) as to any crimes committed in the neighborhood since their last visit. By the fourteenth century, they assembled at the four-times annual quarter sessions and periodic assizes where the king’s magistrates would hold court. Interestingly, there was no property qualification at the local (borough) level, making them more democratic than most medieval legal institutions—though there was a property qualification at the shire level.
The jury would receive bills of indictment from the Crown; if they thought there was sufficient evidence for a trial, they would write “true bill”; otherwise, they would write ignoramus (“we don’t know”). This could act as a check on the tyrannical use of state power: In July 1681, Anthony Ashley Cooper, the Earl of Shaftesbury, was arrested on clearly trumped-up charges of treason. He was freed the following February when the grand jury refused to indict him.
The grand jury lost much of its power in the United Kingdom in the nineteenth century, and was eliminated entirely in 1933. However, in the United States, where the Fifth Amendment enshrined it in law, the grand jury continues its original medieval function—albeit in a much-changed form. Anyone in the early Republic could bring a criminal or civil matter to a grand jury, including charges of public corruption or a criminal complaint. Public prosecutors came into use in the late nineteenth century, and the grand jury’s role increasingly became to rule whether what the evidence the prosecutor had introduced constituted probable cause to hold the accused over for trial. They also decreased in importance at the state and local level: Today, only 22 of the 50 states (including Kentucky) require the use of a grand jury; the rest have replaced it with a preliminary hearing before a judge. However, the Federal government is still required by the Fifth Amendment to use grand juries in most matters.
Significantly, the grand jury’s broad and independent investigatory role has not disappeared—but it has become subverted to the interests of prosecutors. Grand juries are composed of ordinary citizens not trained in law or even necessarily representative of their communities, and can be easily led. As an anonymous defense attorney in Rochester, New York, was famously quoted as saying in 1979, a prosecutor can even get a grand jury to “indict a ham sandwich.” Yet, grand juries still have broad subpoena power to compel witnesses’ testimony—in fact, the Supreme Court ruled in 1974’s United States vs. Nixon that they can even compel a sitting president to testify. Also, the person under investigation has no right to an attorney or to cross-examine witnesses, and prosecutors are under no compulsion to present any evidence that favors exoneration. Grand juries thus can be—and are—used for intimidation purposes, as they were against WikiLeaks whistleblowers, in the impeachment proceedings against Bill Clinton, and various Trump-era investigations. There have thus been numerous calls for reform.
What is needed in the current situation is an old-fashioned “runaway grand jury” that revolts against prosecutorial control and retakes its original medieval function. The most famous case of this was the New York jury that complained in 1935 that prosecutors were not properly investigating mobster Dutch Schultz. Their activism resulted in future governor and presidential candidate Thomas E. Dewey being appointed as an independent prosecutor. More recently, runaway grand juries investigated corrupt officials in Texas and California. It’s not unthinkable that a similar incident might happen as a consequence of Black Lives Matter.
Ken Mondschein is a history professor at UMass-Mt. Ida College, Anna Maria College, and Boston University, as well as a fencing master and jouster. Click here to visit his website.
Top Image: British Library MS Additional 54180 fol. 91v