The jibe about how DAs can get a grand jury to “indict a ham sandwich” was uttered by a former chief judge of New York state, Sol Wachtler. Now the progressives want to make ham sandwiches out of the cops in addition to the rest of us.
The rush is on in Albany for a law that would require appointment of a special prosecutor whenever a police officer kills an unarmed civilian. You could have Zeus for your local DA; a special prosecutor would still be required.
This brainstorm is being hawked by the leftist politicians after a grand jury’s failure to indict Officer Daniel Pantaleo in the death of Eric Garner. A similar law was also proposed in Missouri, after the fatal police shooting in Ferguson.
In Albany the measure is being readied by Assemblymen Karim Camara (D-Brooklyn) and Marcos Crespo (D-Bronx). “This is a watershed moment,” New York City’s public advocate, Letitia James, told the Associated Press this week.
“It’s clear that the system is broken,” James says. The New York Times has come unglued over the issue, saying there is “a crisis of confidence in prosecutors.” The gist of the complaint is that grand juries so seldom indict police officers.
But what is a grand jury, anyhow?
My favorite definition is that a grand jury is a right, one designed to protect individuals from mob justice. At least in America and New York state, it is a right that inheres in all persons who are accused of a “capital or otherwise infamous crime.”
That language is from the Fifth Amendment, which is part of the Bill of Rights. “No person,” the amendment says, “shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”
Similar phrasing exists in New York’s Constitution, whose grand-jury protection is among the strongest in the country.
It doesn’t say that no person shall answer for an infamous crime unless on indictment by a grand jury except for cops. It says “no person” — period.
In other words, the whole principle of the grand jury is to force the justice system to take a deep breath before accusing someone of a crime. The point is to make it harder than it otherwise might be to put someone in the dock.
It wasn’t always like that. Grand juries also have the power to investigate and, on their own, make an accusation, known as a presentment.
In 17th century England, the Heritage Foundation’s annotated edition of the Constitution tells us, that was a big part of the idea.
Things moved in the other direction in America, though. This is why the Fifth Amendment is worded the way it is — the “no person shall be held” language is the key. It’s phrased as a restriction on the government.
The Supreme Court has put the hay down where us mules can get to it: In a case called Wood v. Georgia, Chief Justice Earl Warren wrote that the grand jury serves as “primary security to the innocent against hasty, malicious and oppressive prosecution.”
Grand juries, the chief justice said, serve “the invaluable function in our society of standing between the accuser and the accused . . . to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”
In the wake of Ferguson and Staten Island, this is driving the liberals crazy. They can’t stand the idea that police officers deserve the same protection against mob justice that the Bill of Rights provides to every other person.
The Times, in an editorial this week, demands a law that would automatically transfer “to an independent prosecutor all cases in which a civilian is dead at the hands of the police.”
The paper is pursuing this course only because it knows it can’t just do away with grand juries altogether. That would take an amendment to the state Constitution — an idea that was floated back in 1985, and indeed is what prompted Wachtler’s ham-sandwich wisecrack.
“Do we need grand juries?” the Times asked back then. Fortunately level-headed politicians — such as Mayor Ed Koch — prevailed. It turns out that New Yorkers like the Bill of Rights.
And there’s no reason for anyone to deny its protection to cops.