Needed: Grand jury nullification

The Harris County DA's 'shooting simulator.' AP photo/Austin Am-Statesman

Or anti-nullification, or whatever the hell we call it.

Being in the news biz, I'm quite familiar with the old phrase, "A prosecutor can get a grand jury to indict a ham sandwich." I'm also quite familiar with how true it is, its hoaried clichéness aside.

However, at times, a district attorney does his or her damnedest to get a grand jury to not indict, or no-bill, someone arrested.

And, in Harris County (Houston), Texas, the degree to which the DA's office there is going to try to get police officers no-billed when they're facing charges related to shooting civilians is reaching national scrutiny level.

As it should.

It's true that the "shooting projector" may be used in other cases, but it sure seems like it was created specifically to get cops with seemingly itchy trigger fingers a pass. And yes, they exist, whether shooting adults, kids, the mentally ill or even occasionally pets. Here's the details:

The armed carjacker projected on a large screen threatens to kill you if you don't give up your keys. Holding a modified gun that emits a beam, you pull the trigger when he draws his weapon, and seconds later fire again at another person who jumps in front with something in his hand.

The second person turns out to be a bystander holding a cellphone.

This interactive way of illustrating the use of deadly force is part of unusual training that Houston-area grand jurors can receive before they begin hearing cases, including those involving police officers.

The Harris County district attorney's office in Houston calls the shooting simulator — which experts believe is only being used in Texas — an educational tool that helps grand jurors better understand what someone sees when confronted by a threat.

But amid a streak of nearly 300 cases in which grand juries have cleared Houston police officers in shootings, the training has become a point of contention among critics who say the simulator promotes a pro-law enforcement mindset. One defense attorney recently unsuccessfully challenged the simulator's use, calling it mind manipulation.

It is mind manipulation, even if a court doesn't recognize it.

Behavioral psychology has done a lot of study about "priming." While we still face some problems with replication of these studies — problems that can and should be addressed — there does seem to be some degree of truth to the fact that people can be subconsciously "primed" to look for and see certain things and not others, or to see things in a certain way.

Even a judge has confirmed that:

Harris County's simulator has so far withstood scrutiny by the courts. A judge last month ruled against defense attorney Paul Looney, who challenged his client's indictment by saying the simulations place grand jurors "subliminally in the shoes of the police officer." The defendant, an oil company executive, is charged with assaulting a Houston police officer last year.

It's also misleading because the simulator may not exactly replicate the situation in which the police officer actually was.

And, per the cliché above, it perpetuates a mindset that the DA knows who's a criminal and who's not, which is a matter for a trial jury, or a judge in a juryless trial, to establish. It's not the grand jury's business, nor is it the DA's business at grand jury level. That's why this is so true:

"(Grand jurors) should not be naturally in one camp or the other," said Joseph Gutheinz, a retired federal agent who served on a Harris County grand jury in 2008 and is critical of the simulator's use. "They should be after the truth."

Bingo. And, that's coming from a law enforcement official.

That said, this is all part of the "hang ’em high" mentality that seems to perpetuate Harris County criminal proceedings in general.

Now, per the story, DA Devon Anderson and her office will likely claim, "But it's voluntary." Yeah, but a lot of things, when it's as part of a group, and being done by a leader in a position of authority, come off as pressuring, even if theoretically voluntary.

And, it seems to be "working":

(A)n investigation by the Houston Chronicle last year found that Harris County grand juries have cleared Houston police officers in shootings 288 consecutive times since 2004.

That's a long streak, right?

The streak may not be entirely unusual. Sandra Guerra Thompson, a criminal law professor at the University of Houston Law Center, said grand juries usually give officers the benefit of the doubt in shooting cases because of the dangerous nature of their jobs.

Well, first of all, police officer isn't the most dangerous job in the country. It's not even in the top 10, per this list. And, a police officer's life is in more danger, on average, from driving in a high-speed chase than from engaging a potential shooter. And, overall, in public service jobs, it's at about the same danger level as a firefighter. In general, per a different list, being a logger is four times more dangerous and being on a fishing crew is five to six times more dangerous. Being a farmer is more dangerous than being a cop, for doorknob's sake.

None of this is to minimize the legitimate dangers that police officers, sheriff's deputies, state troopers, etc., face.

But, it is to put things in context — especially in the context of Ms. Anderson, and probably tens of thousands of DAs elsewhere — about cops with itchy trigger fingers in front of grand juries. It's to say that, in general, cops are human. Many cops go out of their way. Many others, even the sheriff's deputies of Posse Comitatus love, or local police, are jack-booted thugs. Some aren't that bad, but aren't good. When even small town cop shops look for MRAPs,  Bradleys and other Iraq War surplus for high-firepower militarized SWAT units, you know that's true. When a town of 500, with a minority police chief, thinks it needs a K-9, you really know that's true.

Or when a cop in Hearne, Texas, fatally shoots his second person in less than 2 years, you've got problems. Besides cops that are occasionally jack-booted thugs, or halfway that way, you've got other cops that are ... well, that are Barney Fifes. Period. End of story. Oh, and in a place like Hearne, I don't need the New Black Panthers dropping in to tell me race is probably involved. Having a Hispanic mayor (this time?) may help; the mayor has recommended the officer be fired.

And, he has been. That said, a nephew of the deceased said she shot first, apparently angry over not getting her driver's license renewed at 93. I'm not here to justify bad cops, but I'm also not here to justify knee-jerk responses by local governments, either.

That said, let's treat cops in the eyes of the law as human beings, not blue angels or civic saints, en masse. The more you keep doing that, the more others, well short of the NBPs, are going to have less, not more, sympathy in general.

So, how to address this?

Per the header, as I told friend Perry, it's simple.

Grand jury nullification, at least in Harris County, Texas. If you're a good liberal, and you're picked to serve on a grand jury, vote to true bill any cop brought before the grand jury. Don't get sentimental.

And, let's do this not just for these cop cases. Given that the US is the only country in the world that still uses the grand jury system, and even here, half the states (probably not "red") have abandoned it, we probably need grand jury nullification until the rest of the states, including the Pointy Abandoned Object State™, drop it.

And, actually, it's not "nullification." It's a "runaway grand jury," and Tea Party wet dreams aside, it gets at the roots of what grand juries did 250 years ago; in New England, they connected to the traditional town meeting and its oversight ideas. That said, the idea of a modern runaway grand jury in a state like Texas would be scary, precisely because Tea Party wet dreams can't easily be set aside.

Back to the basics of grand juries here.

At least Texas requires a three-quarters vote. At the federal level, and in some other states, it's still a bare majority.

In states with elected DAs, my personal thought is that, especially in smaller counties, grand jury work lets incumbent DAs show they're "tough on crime," too. As a second angle, it's use to argue tough cases in court, as in the DA saying, "A Harris County grand jury indicted Mr. Abbott (no resemblance to Greg Abbott or any other living persona named Abbott) on these three charges." So, they must be guilty is the implication.

If you want to prosecute someone, then do it. And defend it. If you want to not prosecute someone, then do that. And defend it, too.

Until we reach that day, though, grand juries, in states that still use them, need to stop being rubber stamps for DAs. No bill a few more ham sandwiches. And, in the case of cops, true bill a few more Reubens.