Grand juries now rare in state and no longer indict

The secrecy of grand jury investigations has received significant criticism in the aftermath of the Ferguson and Staten Island grand jury decisions not to indict police officers who killed unarmed black men.

How those grand juries came to their decisions will most likely never be known, and is part of the reason Connecticut got rid of its indicting grand juries in 1982.

"One of the real complaints in Ferguson was that all the evidence considered was not in the public eye," said Todd Fernow, director of the criminal clinic at the University of Connecticut School of Law. "It's not a trial. It's not adversarial. The only evidence presented is what the prosecutor presents. They can steer the grand jury in either direction (to indict or not indict)."

In Connecticut, when a municipal police officer is involved in a deadly shooting, state police conduct an investigation, forward their findings to the local state's attorney, who in turn submits a report to the state Division of Criminal Justice on whether the shooting is justified or not. When state police are involved in a shooting, troopers from another district conduct the investigation.

A Staten Island grand jury last month declined to bring charges in the death of Eric Garner, a 43-year-old man who died in July after a New York police officer placed him in an apparent chokehold during an arrest.

In November, a St. Louis County grand jury decided not to indict a Ferguson officer in the Aug. 9 shooting of 18-year-old Michael Brown.

Fernow said it's uncommon for a grand jury not to indict.

"There's an old saying that a grand jury would indict a ham sandwich," said Fernow. "To not have an indictment is rare. ... The problem is that we don't know what the juries were told."

Up until November 1982, Connecticut's Constitution required a grand jury indictment before someone could be prosecuted for a crime punishable by death or life imprisonment. A constitutional amendment eliminated that requirement because of perceived inequities in the grand jury process, according to an Office of Legislative Research report.

In Connecticut now, if someone is charged with murder - a crime that could be punishable by death or life in prison - a probable cause hearing is held before a judge, where both the state and the defense can present evidence as to whether it's more likely than not that the defendant committed the alleged crime. If the court finds probable cause, then the case may proceed to trial. The defendant also has the right to waive the probable cause hearing.

While Connecticut eliminated its indicting grand jury, it did retain the investigatory grand jury, which is "defined by statute as a judge, constitutional state referee, or three-judge panel appointed to conduct an investigation into the commission of a crime or crimes," the Office of Legislative Research report said.

The investigatory grand jury can only investigate the following: state and local government corruption; Medicaid vendor fraud; corrupt organizations and racketeering activity; election law violations; and felonies involving the unlawful use or threatened use of physical force or violence against a civilian population or government entity. If the state's attorney or chief state's attorney can prove that it has exhausted all means to find out whether a crime has been committed or the identity of the person who may have committed a crime, an investigatory grand jury can also investigate class A, B, C or unclassified felonies punishable by more than five years.

Fernow said the investigatory grand jury does not have the power to indict, but instead makes a finding on whether there is probable cause that a crime has been committed. The prosecution then must decide whether to file criminal charges.

Investigatory grand juries, however, are rare. Fernow noted that in the last 20 years there have been about 12.

One of those was convened in 1993, when then-Superior Court Judge Arthur L. Spada, acting as a one-man grand jury, found corruption within the Hartford Police Department. The investigation led to the arrest and prosecution of several officers.

Fernow said other reasons that Connecticut got rid of the indicting grand jury was that it was costly; difficult for the small state to find the more than 20 people needed to sit on the panel; and that the state moved from a two-tier court system to a single Superior Court.

"It was a procedural artifact of an older system and counterproductive to an open system," said Fernow.

i.larraneta@theday.com

Twitter: @larraneta

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