January 7, 2015

If secret grand juries lead to Ferguson-style justice, isn’t it time to roll the cameras?

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Answers may be illusive in Missouri, but new legislation in Oregon could become a model for reform: just record the proceedings … and prosecutorial playgrounds become transparent

The thing about being a felon in possession of a firearm is that sometimes you get caught. And if you’re Joe Johnson, getting caught is as easy as shooting yourself in the groin.

Johnson was facing 20 years in prison in a Multnomah County, Oregon, courtroom in June. Ten were for the weapon – its discharge, as carefully explained by a forensic expert on the stand, was from inside the pants – and the other 10 were for shooting a friend turned frenemy outside a grocery store in Portland, an incident described as a botched robbery, with conflicting accounts as to who was robbing whom.

As he sat before the trial jury, nobody held out much hope that Joe Johnson would not be going to prison. Not even Johnson himself, who at points was only anxious to get the proceedings over with.

But here’s the thing: a few days before this trial began, Johnson was indicted by a Multnomah County grand jury for new crimes. And in this new indictment, he went from an alleged self-mutilator and robber to both … plus a drug kingpin. There was nothing in police reports from the night of the robbery to indicate to Johnson or his attorney why this suspect might be a drug dealer and not just a gun-toting ex-con. The day his trial began, Johnson’s public defender had to make the case that her client – any client – deserved to know just what witnesses said at grand jury, and what they were told by prosecutors to prompt a second wave of charges.

Such courtroom bafflement is not uncommon in Oregon – or Ferguson, or much of anywhere else in America where secret proceedings get trumped by their own secrecy. There are only 14 states that don’t require their grand juries to be recorded. In Oregon, a single grand juror tends to take notes – scribbles on the back of the court calendar have sufficed – and those notes are kept secret. Defendants instead receive a police report, an indictment listing charges and witness names, and a statement from a district attorney explaining why they’ve been charged. Sometimes the documents – those three, or materials in unrecorded grand-jury proceedings in places like Ohio, Maryland and beyond – just don’t add up.

Defense attorneys say the fix is simple: an MP3 recorder or a video camera in the grand-jury room would boost transparency and eliminate basic confusion. Recordings could also capture witness testimony that changes between grand jury and trial, and the testimony of witnesses who provide evidence in that defendant’s favor. But this is not just the stuff of Serial-style investigative reporting: The push for recording grand juries is getting real bipartisan support – propelled, it seems, by Ferguson-style justice.

Most prosecutors, of course, disagree, and getting cameras in courts is never that simple. (Legal experts have been pushing for them in the US supreme court for years.) But while in Missouri this week a grand juror is now suing to speak out about the Darren Wilson grand jury and the NAACP Legal Defense Fund is asking a judge to appoint a special prosecutor, Oregon’s attorneys are doing battle at the state legislature. Their fight might provide a model for the rest of the country – or at least those 13 other states that don’t yet daylight grand juries – and record every grand jury proceeding, forever.

“The other kinds of grand jury reforms that people are talking about?” Oregon state Rep Jennifer Williamson asked the other day. “We’re not even at first base.” But she plans to introduce a bill early this year that calls for recording, and it’s already gaining traction among minority advocates and activists.

The impending political joust has played out before. Josh Marquis, a prosecutor from Clatsop County’s rural swath of timberland and coastal vacation homes, estimates such bills have been beat back about 30 times in Oregon alone. He’s against recording grand juries, fervently denying that secrecy makes for the kind of prosecutorial playground that critics charge.

“The conventional wisdom is that our justice system is about a gladiatorial system where each side presents its version of the truth and, out of that, the jury tries to figure out what really happened. That is not what’s really going on,” Marquis told me. The prosecutor insists that defense attorneys use everything they can to keep their client out of prison. Recordings add a tool to that shed, one he thinks will only serve to clutter courts.

And then there’s Mike Schrunk, a former prosecutor for Oregon’s more racially diverse Multnomah County, who has previously asked judges for permission to record grand juries in police use-of-force cases.

“I’m sure if you talked to DAs around the state they’ll say I’m an idiot,” he said. But despite Schrunk’s confidence in the grand-jury system, he says the lack of public confidence is plain. And transparency is an easy and essential way to begin restoring that confidence after the death of people of color killed by police in recent years. Even if the grand-jury recordings bill passes in the Democratic-controlled Oregon legislature and others like it, individual judges will have to decide when and if the general public have access to the recordings and footage – rather than just the Darren Wilsons of the world.

In the last five years, 1,800 people have been indicted by grand juries every month in Oregon – that’s 110,000 overall. And if Joe Johnson can step into a courtroom and face half the rest of his life in prison without knowing what, exactly, he’s accused of doing, critics charge that anybody else can, too – including the truly innocent.

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