Scot Free: Why the Grand Jury System Should Be Reformed

Protesters sit during a march against the New York City grand jury decision to not indict in the death of Eric Garner in Berkeley, California December 8, 2014. Stephen Lam/Reuters

In 1913, a miners' strike in northern Michigan heralded a period of unrest and lawlessness of remarkable proportions. Battle lines hardened as union members and mine management faced off for more than half a year. The two sides never met to negotiate—mine management refused—and violence and crime flared up.

While neither side was blameless, a phenomenon occurred that historians have clearly detailed. The forces that ran the local government, who were almost unanimously pro-management, evaded justice for the bulk of their crimes. They did this by manipulating the legal process. Of particular note: They rigged a grand jury into failing to indict for some very public and obvious crimes.

The Copper Country strike of 1913-1914 is best known as the setting of the Italian Hall disaster. There, 73 people died in a stampede following a false cry of "Fire!" at a Christmas Eve party for the children of striking miners; 60 children died.

There was ample evidence that the cry of "Fire!" was intentional (there was no fire), and the man who cried "Fire!" was probably known to many of the people in power. But there were conflicting accounts of what happened at the Italian Hall and, as we know from the grand jury in Ferguson, Missouri, considering the case of Darren Wilson who shot dead the unarmed Michael Brown, grand juries sometimes dodge the issue when faced with confusing fact patterns.

There was a more blatant crime during the Michigan miners' strike—one where the criminality of the act and the identities of the wrongdoers were unquestioned. The president of the Western Federation of Miners, Charles Moyer, was staying in a nearby hotel when word of the Italian Hall disaster reached him. He immediately sent telegrams to various politicians demanding an investigation into the tragedy.

Pro-management members of the community responded by taking action. The sheriff escorted a group of local dignitaries to Moyer's hotel room and demanded he publicly exonerate pro-management allies of any wrongdoing at the Italian Hall. When Moyer indicated he could not do that—no one knew what had happened yet—the sheriff warned him he would not be protected further and the men left.

Moments later, another group of men—who would have passed the sheriff's group in the hallway—barged into Moyer's room, beat him, shot him and hauled him away. Word had spread through the community that Moyer was going to be forcefully ousted and hundreds flocked to the streets to watch. Moyer was dragged a mile through the streets of Hancock to the nearby town of Houghton and thrown on a train bound for Chicago. His attackers told him they would kill him if he returned.

To assure Moyer stayed on the train, two of his attackers boarded with him and held him there until they reached the Michigan-Wisconsin border. The names of the kidnappers—Hensley and McKeever—were well-known. They were even named in the local pro-management newspapers, and what they had done had been witnessed by hundreds of people who gathered at the train station.

Moyer went to Chicago, had his gunshot wound attended by a doctor and eventually returned to Houghton. There he testified before a grand jury which had specifically been empanelled to investigate strike crimes. Moyer told them of the kidnapping and the names of his kidnappers.

The grand jury returned no indictments as to the kidnappers. Instead, they indicted Moyer for conspiracy for union organizing.

How is it that the grand jury did not indict Moyer's kidnappers? The answer lay in the creation of the grand jury. A later investigation obtained a list of the grand jury members and their occupations. One was the chauffeur for the president of the biggest mine in the county. Nine members belonged to a militant anti-union group called the Citizens Alliance. Eight were employed directly by the mines. Even those not employed by the mines were local businessmen, known to be anti-union. None were miners or union members.

How were grand juries drawn in Houghton County in 1913? The lists from which members were drawn also survive. The county clerk drew up a list of potential jurors. It included 45 names, and most were known allies of mine management. This, in a county of over 80,000 people.

When it came time to select a grand jury, any draw from this pool guaranteed a pro-management jury. And the draw was not random; it was made by the sheriff and two justices of the peace who could apparently just pick any names they liked from the list. So, the fix was in long before Moyer testified, long before the first juror was sworn in. And all it took was one person—a pro-management clerk—to rig the entire system.

Fast-forward a hundred years to the grand jury in Ferguson, hearing evidence on the death of Michael Brown, or the one in Staten Island on the death of Eric Garner. They fail to issue indictments and their inaction is met with widespread outrage and protest. Are there similarities among the cases of Moyer, Brown and Garner?

Moyer's grand jury was easily rigged because a single person chose its members. The Ferguson grand jury, according to the Office of the Prosecuting Attorney, was created by "a circuit judge"—one person—who interviewed "residents randomly drawn from the jury pool of more than 750,000." Ostensibly, "The judge selects jurors who are representative of our community, understanding that differing life experiences strengthen the quality of their collective wisdom."

But what checks were in place to prevent a Ferguson grand jury from paralleling the Houghton County grand jury? None, apparently. The people are simply asked to trust that a lone gatekeeper will select a fair grand jury from the pool.

Of course, each state has its own process. According to the New York State Unified Court System's Grand Juror's Handbook, potential jurors are questioned on their qualifications. Once a large enough pool has been vetted, 23 are "randomly selected" by the judge or the "commissioner of jurors." Assuming that the vetting process did not exclude potential jurors for the wrong reasons, such as race, then this process seems less likely to produce skewed results than those driven by a single decision maker.

Is there something to learn by comparing the cases of Moyer, Brown and Garner? The obvious point from the first two is that you should not allow a single person to control the makeup of a grand jury. In the case of Moyer, we know the process was corrupted and led to a foregone and unjust result.

With Brown, many will forever wonder whether the system was gamed due to the secrecy surrounding the selection of the grand jury. Simply changing the system to a random draw of potential jurors and assuring that the pool is proper would resolve many lingering doubts.

As for Garner, the answer is not as clear. The New York system appears to be geared a little better toward achieving a properly composed grand jury—that is, one that will not come in with unfair predispositions.

But is there still too much of the unknown in the process? Perhaps some of the secrecy should be lifted from grand jury proceedings. Simply opening a window on the process might be a step in the right direction. For example, if secrecy exists simply to protect the jurors, why not publish redacted transcripts of the selection process? Let us see the questions asked and the answers given, without telling us the names of the jurors.

Any steps which reasonably allow the public to watch the process would be in the right direction. After all, sunlight is the best disinfectant.

Steve Lehto is an attorney and author of Death's Door: The Truth Behind the Italian Hall Disaster and the Strike of 1913. Follow him on Twitter @stevelehto