“Quis custodiet ipsos custodies?”
-Roman poet Juvenal, Satires

We have a policing problem in America.

At heart, it’s not a problem unique to the police, or to America. Indeed, as Juvenal’s quote above indicates, it’s a problem the Romans were well aware of, too. Thanks to a slew of high-profile cases, much of the mainstream is becoming aware of policing issues that those who live on the fringes of society have been most sensitive to.

The problem addressed here isn’t even really so much about police. Policing is a dangerous, difficult, and often thankless job. We need police, and good police. But good police officers must be willing to admit that there are bad ones amongst their ranks.

The policing problem we have is just this: how do we hold officers accountable for bad actions? For killings? Or, to paraphrase Juvenal, who watches the watchmen?

Michael Brown. Eric Garner. John Crawford. Tamir Rice.* In the media lately there have been a large number of cases of police killing unarmed individuals, officers who have thus far not faced any consequences. This has been generally determined by way of a grand jury refusing to indict the officers on criminal charges, thereby “clearing” them of wrongdoing.

There is another recent case – a Kentucky case – that has not received nearly as much attention as the others.

On April 26^th of this year, 19-year-old Samantha Ramsey was shot to death by Boone County Sheriff’s Deputy Tyler Brockman. Last month, after evidence from an investigation carried out by Brockman’s colleagues was presented to a grand jury, they failed to issue an indictment, effectively “clearing” Brockman of wrongdoing.

The reason for writing about this today is really two-fold. The first is simply to shine much-needed light on what happened to Samantha Ramsey. Regardless of whether or not you believe her killing was justified, it is unquestionably a tragic case that deserves far more attention than it has received.

There is a much more troubling aspect to her case, however, because of the implication that looms in the aftermath. It is an implication that exists, again, regardless of whether you believe her killing was ultimately justified. The same implication hangs over the gravestone of Michael Brown, Eric Garner, John Crawford, of Tamir Rice, of the dead forgotten and the dead to come.

The problem is with the legal process that flows from these killings, or rather, the lack of it. It is The Grand Jury Problem.

In the wee hours of April 26^th, 2014, 19-year-old Samantha Ramsey and friends were leaving a party in Boone County, Kentucky. What we know from Deputy Tyler Brockman’s dash camera is that they first encountered each other as Ramsey was attempting to turn left onto a main road, and Brockman was attempting to stop her.

In the footage below, you see everything leading up to the moment of the shooting:

Brockman and Ramsey first encounter each other at about 2:18 in the video. Brockman’s statement about what happened next differs somewhat from other eyewitnesses. According to him, he is forced onto the hood of the car and believes that he is about to die because Ramsey isn’t stopping.

“At this point Deputy Brockman knew the operator, Samantha Ramsey was about to kill him. Deputy Brockman in reaction to the deadly force brought against him, drew his Glock 22 Service weapon and fired…”

Four rounds went through the windshield, striking and killing Samantha Ramsey. Brockman stated  that he believed she was speeding up while he was on the hood of the car.

After he fires, Brockman rolls off the hood of the car, keeping his gun trained on the car until it comes to a stop.

Passengers in Ramsey’s car dispute Brockman’s version of events, essentially stating that he jumped onto the car and fired almost immediately.

Whatever the truth, according to her death certificate, Ramsey died within seconds to minutes from multiple gunshot wounds.

In the aftermath, Brockman’s colleagues handled the investigation into the killing. Evidence from that investigation was presented to a Boone County grand jury last month, which did not issue an indictment against Brockman – effectively “clearing” him in the killing.

Brockman’s statement and the evidence indicates that he believed, or says that he believed, he was acting in self-defense. The media attention thus far on the Ramsey case has focused a good bit on whether or not she was intoxicated (she was) and on whether or not she ran over his foot or otherwise hit him with her car (it is possible).

“…had no other choice…”

These issues detract from the central question that goes to the heart of the legality of the killing, which is just this: in the moment that Brockman fired his weapon, was his belief in the necessity to use deadly force to protect himself “reasonable”?

In Kentucky, you can use deadly force in self-defense so long as:

1. you are in a place where you have a right to be, and
2. your belief in the need to use deadly force to protect yourself or others is not reckless.

It is at least arguable that Brockman’s actions satisfy neither of these criteria.

1. You are in a place where you have a right to be.

For instance, it is arguable that Brockman had no right to stop Ramsay’s car in the first place. A police officer has to have “reasonable suspicion” that a crime is occurring in order to not run afoul of the Fourth Amendment which prohibits unreasonable search and seizure. According to Brockman, he is able to determine that Ramsey’s eyes are glassy, which is a classic indication of intoxication and would, therefore, likely suffice to give him that “reasonable suspicion” to stop the car.

You can see in the footage that the encounter between Ramsey and Brockman is brief, and that the only time he is close enough to gauge the glassiness of her eyes is after he has put himself into the path of the vehicle, not before. By placing himself in the path of the vehicle, he effectively seized it under the Fourth Amendment. Therefore, it is at least arguable that Brockman tried to stop the car before having that reasonable suspicion that a crime was occurring.

In short, by trying to stop the car, he was not in a place where he had a right to be and was acting in excess of his lawful authority. If Brockman was acting outside of his lawful authority when he tried to stop Ramsey’s car, what would that mean for the lawfulness of the subsequent shooting?

2. Your belief in the need to use deadly force to protect yourself or others is not reckless.

It is also at least arguable that Brockman’s belief that he had no choice is not a reasonable one. After he fired, he rolled off the car… Was there some reason he could not have rolled off the car prior to shooting Ramsey? Was it reasonable to believe he had to kill the driver before he could roll off the car?

Was it reasonable to believe that killing the driver of a moving car would cause the car to come safely to a stop, rather than speed up and/or veer off the road into a ditch or a tree, harming the other passengers or an innocent bystander?

The facts here also present a more basic question. In the last frame where Brockman and Ramsey are still visible in the dash cam footage, you can see Brockman sidestep directly into the path of the vehicle.

Brockman’s statement indicates that he believed he had no choice but to kill Ramsey. But, is choosing to put yourself in a position where you feel as if you have no choice the same as not having a choice? Is such a choice reasonable? Or is it reckless?

My purpose in pointing out these issues is not to try to convict Brockman, to say he is guilty of a crime. Ultimately, no one knows yet whether or not he is guilty of a crime. Guilt or innocence is something decided by a trial jury, where zealous advocates for both the state and the defendant put their cases in public view for impartial individuals to weigh.

My purpose in pointing out these issues to highlight the problem that the evidence will never see a trial jury, because of the grand jury.

A grand jury is not a trial jury.

For those who are not aware of the difference, a little background: the grand jury is a hold-over from our English heritage. It is a group of regular men and women that meet (like a trial jury), but instead of deciding guilt or innocence, simply decide if there is sufficient cause to believe that a crime has been committed. If it decides yes, it issues an indictment, which means that the case will proceed to a jury trial, the kind most people probably think of when you say “jury.”

A grand jury, also unlike a trial jury, meets in secret with just the prosecutor. There is no “other side” at a grand jury. The evidence that is presented, and how that evidence is presented, is also secret.

Grand juries indict the vast majority of cases brought before them. For example, in 2010, federal prosecutors presented about 160,000 cases to federal grand juries across the nation. The grand jury refused to indict in exactly eleven of those cases. New York jurist Sol Wachtler famously remarked that a prosecutor could get a grand jury to indict a ham sandwich. The statistics bear out that grand juries almost always do what prosecutors want them to do: indict.

The Grand Jury Problem

Prosecutors are supposed to be zealous advocates of the state in seeking an indictment, and as statistics indicate, they function as just that 99.99% of the time. But what happens when prosecutors don’t want an indictment?

Simple. They don’t get one.

While the materials from the Boone County grand jury the refused to indict Brockman remain under seal, the transcripts from the Ferguson, Missouri grand jury dealing with Michael Brown’s killing by Officer Darren Wilson were released. And they reveal something very troubling. This is, again, even if you believe that ultimately Officer Wilson was not guilty of a crime in that shooting.

The Ferguson grand jury transcripts shows that the prosecutors were acting as something other than zealous advocates of the state:

• aggressively questioning witnesses that were harmful to Wilson and treating gently those who were helpful;
• presenting a witness multiple times to the grand jury who, while corroborating Wilson’s version of events, likely fabricated her testimony;
• incorrectly instructing the grand jury as to when a police officer can use deadly force;
• and simply not asking for an indictment.

Essentially, the prosecutors acted as defense attorneys for Officer Wilson. That isn’t to say that they intentionally derailed the grand jury. It is human nature to be biased in favor of people that you’re close to, with whom you work.

For instance, the Justice Department recently released a lengthy investigation into the Cleveland Division of Police, finding (amongst other things) that officers who were tasked with investigating the use of force by fellow officers routinely tried to paint those officers in the best light possible.

Reading through the transcript of Brockman’s interrogation by his colleague, you can see traces of that same kind of bias in how Brockman’s interrogation was handled.

Most people see a grand jury failing to indict as a fair conclusion that no wrongdoing was committed, which is how most of the media has treated the grand jury decisions in all these cases. Such a perspective also serves the interests of prosecutors who do not want an indictment, as they get to say that the lack of a criminal trial isn’t their fault, but rather the responsibility of the grand jury.

What I hope to illustrate is that the fairness of the grand jury decision in Samantha Ramsey’s case (and in others’ cases) depends entirely on the truth of two major assumptions:

1. That the investigation by police was not conducted with an eye towards acquitting their colleague of wrongdoing; and
2. That the prosecutors where acting as zealous advocates for the state in seeking an indictment from the grand jury, and not as defense attorneys for the officer.

The grand jury materials from Ferguson and the report from the Justice Department indicate that neither of these assumptions is safe to make. Given the secrecy that generally comes along with grand jury proceedings, the fact that we have no choice but to make them should be extremely troubling to all of us.

Justice is Process, and Process is Justice.

In the criminal defense field, there is a saying: justice is in the process. In other words, to convict someone of a crime without a trial and without access to the evidence against them is not justice – even if he is guilty. Justice comes not only from the rightness in the result, but in the rightness of the process as well.

This is the grand jury problem. It is an epitaph on the life of Samantha Ramsey, of Michael Brown, Eric Garner, John Crawford, Tamir Rice and others.

Simply stated, it is a failure of process, and since justice is in the process, a failure of justice as well.

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*A grand jury has yet to issue a decision on the shooting death of 12-year-old Tamir Rice though, if recent trends are any indication, it seems a distinct possibility that the grand jury will “clear” the officers involved in that case, as well.