By Ira Glasser and Norman Siegel

The secret panels deny fairness and frustrate justice

Events in Staten Island and Ferguson, Mo., have thrown a long-overdue spotlight on grand juries. In New York, Gov. Cuomo recently called for a review of grand juries, among other things. It’s about time.

Grand juries have long been criticized by legal scholars for their secrecy and dubious procedures. But the reasons for such criticisms, and for proposals to abolish or reform grand juries, are not well known publicly.

What is a grand jury, why do we have them and what do they do? The grand jury is a group of citizens convened to screen criminal cases and decide whether there is enough evidence to accuse and bring someone to trial. It is not built to determine guilt or innocence.

This is an ancient device with origins in medieval England. But the United States is the only common law jurisdiction in the world that still uses it routinely to screen criminal indictments. And even here, many states no longer use grand juries.

In colonial America, the first grand jury was convened in 1635. Back then, they had an important purpose: In the context of growing antagonism between the colonists and the British colonial government, they were a means of interposing citizens between the government and its critics.

Grand juries thus were widely perceived and revered as bulwarks of liberty between citizens and an oppressive government.

They have long since stopped fulfilling that function. Instead, they have become an instrument of the prosecutor, full of unfair procedures carried out in secret. This has been widely recognized in legal circles for decades.

Crucially, grand juries are a unique departure from our standard adversarial tradition — which creates procedural fairness by having lawyers for both sides present their evidence and their legal arguments, cross-examine each other’s witnesses and do it all in the light of day, on the record and presided over by a judge whose job is to enforce procedural rules and ensure that proper legal standards are applied.

Grand juries have none of that. Only the prosecutor chooses what evidence to present. Only the prosecutor ordinarily questions witnesses. And only the prosecutor explains the law, and the legal standards to be applied.

No opposing counsel appears. There is no cross-examination. No judge presides.

And it all happens in secret.

Under these circumstances, it is not surprising that grand juries are little more than instruments of prosecutorial discretion.

In Ferguson and Staten Island, these procedural flaws were prominent. Because the proceedings were secret, it is difficult to know precisely what occurred, and that is a large part of the problem. In New York, grand jury proceedings remain secret by law.

Nonetheless, there is reason to think that the Ferguson prosecutor presented evidence in a way that led some grand jurors mistakenly to think that in order to indict they needed to find evidence beyond a reasonable doubt.

And in Staten Island, there was a video showing the police officer engaged in a prohibited chokehold on Garner. Yet we will never know what happened in the grand jury room, because the proceedings were closed, were not subject to arguments and cross-examination by any opposing counsel, nor to rulings by a judge on the correct legal standard to be applied.

What we are left with is seething resentment based on reasonable but unverifiable speculation, and a strong feeling that the fix was in, fair procedures non-existent and justice not served.

There is another way, one that many states already use. Instead of a grand jury, felonies could require a preliminary hearing to decide whether there’s enough evidence to justify a trial. The hearing would be held in open court, with a judge presiding, and lawyers on both sides in the normal adversarial process.

This would be a major advance for both fairness and justice. Sometimes people still wouldn’t like the result. But this is not about achieving a different result; it is about achieving a fairer process.

And especially in cases like the ones in Ferguson and Staten Island, it is about increasing the possibility of having confidence in the result because we have confidence in the process. In Missouri, state law provides that such a preliminary hearing may be used. But the decision is up to the prosecutor, and he chose the grand jury. It is not hard to see why.

The grand jury is a process left over from another time. It denies fairness and frustrates justice. And it does it all behind closed doors. It’s time for it to go.

Ira Glasser and Norman Siegel are, respectively, the retired and former executive directors of the American Civil Liberties Union and the New York Civil Liberties Union. This post was originally published in the New York Daily News on December 7, 2014.

By Shaleen Shanbhag

Book returned to Riverside middle school libraries

This week, the Riverside Unified School District Board of Education voted (3-2) to restore John Green's popular tween novel, The Fault in Our Stars ("TFIOS"), to its middle school libraries. The board's action overturns the decision of the district's book reconsideration committee, which voted to remove TFIOS from school libraries in September due to the book's realistic depiction of cancer and death.

We joined community members in urging the board at its Monday meeting to put TFIOS back on library shelves. John W. North High School junior Naeche Vincent asked the board why it would ban TFIOS when it depicts something very real.

"Since nobody is too young to get cancer, nobody is too young to read a book about it," Vincent said.

Fellow high school junior Maya Kotomori spoke about how TFIOS' author inspires bravery in adolescents through his story of two terminally ill teenagers who fall in love. "To limit what we read is to limit thought, and to limit thought is to never progress," she said.

Ann Camacho, an English teacher at John W. North High and the parent of an eighth grader who read TFIOS, told the board that reading fiction nurtures empathy and that the board would be doing "a disservice to extract a resource that might be the very bridge to connecting young people with young people who have also faced challenges."

The two school board members who voted to uphold the ban argued that the book was inappropriate for middle school students, citing recommendations by some rating agencies that indicate TFIOS is best suited for students in high school. The majority of board members, however, mentioned that they knew middle school children who have appreciated the novel, and that other rating groups recommend the book for younger students.

The board's comments underscore the fact that parents may have different perspectives on what material is appropriate for their children to read, and that it is unacceptable for one parent's view to control what books other children have access to in their public school library.

Courts have long recognized that the school library is a symbol of intellectual freedom at the core of students' First Amendment rights. The school library is a place where "'a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum. [...] The student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom."*

The board's decision to restore TFIOS reinforces this important freedom.

*Bd. of Educ. v. Pico, 457 U.S. 853, 869 (1982) (quoting Right to Read Defense Comm. v. Sch. Comm., 454 F. Supp. 703, 715 (Mass. 1978))

Shaleen Shanbhag is a 2015 UC Irvine Law Public Interest fellow at the ACLU of Southern California. Follow ACLU_SoCal.

Yesterday, the Los Angeles County Board of Supervisors voted (3-2) to create a civilian oversight commission to oversee the L.A. County Sheriff's Department. ACLU SoCal and other community organizations sent in letters and made statements in support of civilian oversight.

We believe that such a commission should:

• Create safeguards against abuse and corruption by top brass;
• Check the L.A. sheriff's autonomy;
• Hold public hearings on violence and corruption in the Sheriff's Department; and
• Ensure that LASD is complying with the law.

We urge the working group, which the board charged with planning and structuring the commission, to evaluate what powers and authority the civilian oversight commission can have under current law, as well as what it ideally should have. For example, for the commission to be most effective, it should have subpoena power.

Should the working group find that the board does not have the authority under current law to create a civilian oversight commission with subpoena power, or other authority the working group believes is important for an effective commission, the board should lobby Sacramento to give it the authority it needs to create a civilian commission that will provide for appropriate oversight and accountability of the Sheriff’s Department.

Esther Lim is jails director at the ACLU of Southern California. Follow ACLU_SoCal.