Cop Indicted in Brooklyn

The indictment voted last week against police officer Peter Liang provides Brooklyn DA Kenneth Thompson the same political cover beneath which prosecutors hid in similar cases in Staten Island and Ferguson—the grand jury—albeit with an important difference: in Brooklyn, the DA isn’t running for cover.

The grand jury is a hoary old institution in our law meant as a bulwark against overzealous prosecution, empowering ordinary citizens to have some say in who is brought up on felony charges in their communities. Those critical of the grand jury system argue that it is little more than a rubber stamp for the DA.

Whether grand juries protect citizens against prosecutors in theory, in practice grand juries often protect prosecutors against citizens’ wrath, serving as a convenient patsy for DAs seeking to shirk blame for their decision to prosecute politically sensitive cases or—as in Ferguson and Staten Island—to avoid prosecuting them.

While a prosecutor can convince a grand jury to “indict a ham sandwich”—as New York’s former top judge once famously observed—the reverse is equally true. A dirty little not-so-secret is that any prosecutor worth his salt knows how to engineer a “blow out,” a refusal by the grand jury to hand up an indictment.

The most common reason to seek a blow out is to give the DA someone else to blame. While a district attorney has discretion—indeed, a duty—not to bring unsubstantiated or fatally weak felony charges, oftentimes it is politically tempting for elected prosecutors to allow that decision to rest with grand jurors, permitting the DA to shrug and say, in effect, “Well, folks, I tried.”

A blow out can follow from an intentionally half-hearted presentation of evidence, an unenthusiastic charge on the law, or even a roll of the eyes. But in both Ferguson and Staten Island, the DA took the opposite tack, which nevertheless had the same effect. There, the prosecution presented essentially a full-blown trial to specially impanelled grand juries, putting in scores of witnesses and reams of evidence. The Staten Island grand jury sat for nine weeks and heard evidence from over 50 witnesses, and the Ferguson grand jury took testimony from 60 witnesses over the course of 25 days. One would not ordinarily see such a mass of evidence even at an actual jury trial on homicide charges.

In such a hyperventilated atmosphere, is it possible that grand jurors could forget that their role is not to deliberate guilt but merely to decide whether the DA has sufficient evidence to let the case go forward to trial? It is more likely, I suggest, that under these circumstances grand jurors will confuse their role with that of trial jurors and effectively weigh proof of the accused’s guilt. And when—as in all three of these police cases—the evidence of actual criminal behavior is thin, grand jurors will have little choice but to vote “not guilty” by refusing to indict.

Often, when the evidence is weak, a blow out may be the “right” decision, even when the local DA is too politically chicken to make it himself. But in my view prosecutors stepped over the line in Ferguson and Staten Island, crassly subverting the process by giving grand jurors “absolutely everything,” as the prosecutor in Missouri admitted. Even at trial, prosecutors have no obligation to give juries evidence favoring the accused; by doing so in the grand jury, prosecutors ask grand jurors no longer merely to say whether there is sufficient evidence to substantiate the charges but to weigh all the evidence both against and in favor of the accused—in other words, to do prosecutors’ jobs for them.

Compare Ferguson and Staten Island with Brooklyn where the DA took no extraordinary steps to secure—or to avoid—an indictment but instead went before a sitting jury with an unremarkable presentation of evidence consisting of 14 witnesses over a few days. The grand jury responded by doing nothing extraordinary either: it indicted Officer Liang of manslaughter, finding there to be sufficient evidence of criminal conduct at least to allow a trial jury to consider his guilt at some future date.

While I am hard pressed to see how the charge of manslaughter could hold up against Officer Liang at trial, published accounts of the incident—in which the rookie cop unintentionally shot and killed a young man in a stairwell—suggest that Thompson, the Brooklyn DA, at least has evidence of wrongdoing that could satisfy the lesser standard of proof applicable to the grand jury. While one can disagree with Thompson’s call, it was his call to make and he made it without resort to the cheap pretense that the grand jury forced it on him.

In all three cases, prosecutors got what they wanted from the grand jury, but if nothing else the Brooklyn case evinces far less political hypocrisy than those cases that preceded it.