Hennepin County Attorney Mike Freeman announced Wednesday he will not seek a grand jury in the Jamar Clark case – or any future police-involved shootings.
His reason: Grand juries just aren't that transparent and there's lack of accountability, he says.
So how will this affect the process?
What a grand jury does
Let's start with what a grand jury does. Minnesota law says grand juries are required for first-degree murder, and other charges for which the sentence may be life in prison. But they can also be called at the discretion of a county attorney.
A grand jury – which can be from 16 to 23 people – meets in private to hear testimony from witnesses (who are questioned by the prosecutor), as well as review documents, videos and other evidence, Freeman explains.
The grand jury doesn't decide guilt or innocence. Instead, it deliberates in private to decide if there's enough evidence to charge the accused person with a crime.
If there is, the grand jury issues a written statement of the charges called an indictment and the case then goes to trial, the U.S. District Court of Minnesota explains. If there isn't, the grand jury issues a no bill and the case is over.
What are the criticisms?
The main problem critics have with grand juries is they're anonymous, so there's no accountability, Mark Osler, a professor at University of St. Thomas School of Law, told BringMeTheNews Wednesday.
Members of a grand jury are kept secret, and for the most part so are the proceedings. Plus, a grand jury doesn't have to explain afterward why it chose whether or not to indict a person.
Grand juries have especially been criticized in officer-involved shootings, Derik Fettig, former assistant U.S. Attorney in California and externship director at Mitchell Hamline School of Law, explained to BringMeTheNews.
That's because in almost all cases grand juries return an indictment – there's an old saying that a prosecutor could persuade a grand jury to “indict a ham sandwich," Fettig says.
But that's not the case with officer-involved shootings – he calls them "an anomaly."
CityPages reports there is no record of an officer in Minnesota being charged with murder in connection to an incident that happened while they were on the job. (For a detailed look at officer-involved shootings and how many people are indicted, check out this Washington Post investigation.)
This leads to speculation from those on the outside, Fettig says. Critics say because the prosecutor is the only person presenting evidence to the grand jury, it could give them "too much control over the process."
An example Fettig gave: A prosecutor may want to protect their relationship with police, so they could present evidence that would make the grand jury not return an indictment.
Fettig acknowledged a grand jury can be beneficial. It allows members of the community to look at evidence, gives an opportunity for witnesses to testify to help determine the facts of the case. And it doesn't leave the decision up to one person, such as a county attorney.
Freeman's decision is 'significant'
It's common practice these days for a county attorney to convene a grand jury to decide charges in officer-involved shootings. So when Freeman announced he wasn't going to, it was a pretty "significant" move, Osler says.
Instead of the anonymity behind a grand jury, we'll now know the "who" making the decision on whether or not someone is charged, Osler expalins. This "certainly heightens" the scrutiny, accountability and pressure put on the county attorney, according to Fettig.
Fettig called Freeman's decision a big change, but noted it doesn't "totally alleviate" concerns that prosecutors have too much control. There's no law that dictates how county attorneys must work when deciding charges (it's typically a less formal process than what's involved in a grand jury), and there won't necessarily be a ton of transparency during that process.
But there could be more "after-the-fact" disclosure, Fettig says. The public and the media can ask questions – something that isn't there when a grand jury is used.
Fettig's guess is that under this new procedure, if there is a high-profile case (possibly this one) or a handful where charges aren't brought against the officers involved, then there could be new calls for reform. There would also be a "perceived bias" between the county attorney and the police department.
Activists and Jamar Clark's family were happy with Freeman's decision, saying it's a step in the right direction, but real justice will come when officers are held accountable and face charges, KSTP reports. Freeman's decision on possible charges for the Minneapolis police officers who fatally shot Clark last November is coming at a later, unspecified date.
Will other county attorneys follow suit?
Fettig said it would be interesting to see if other county attorneys decide to follow Hennepin County's lead, noting the public perception regarding officers not being held accountable for shootings probably won't change unless more start being charged.
Anoka County Attorney Tony Palumbo has convened a grand jury to review the case of Michael Kirvelay – he was fatally shot by police in Columbia Heights last fall.
Kirvelay's family has asked for no grand jury, and on Wednesday they released a statement calling on Palumbo to follow Hennepin County's lead.
Palumbo told MPR News Anoka County isn't changing its policy on grand juries for officer-involved shootings, but noted "county attorneys are always looking at their process to make sure they're correct."
The publication mentioned others who disagreed with Freeman's decision, saying the community should be the ones passing judgement in officer-involved shooting cases, not the county attorney.
Last August, California became the first state to ban grand juries in officer-involved shooting cases, the Los Angeles Times reported.