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To mark the anniversary of Dr. Martin Luther King’s birth, TRNN’s Eddie Conway interviews veteran Baltimore attorney Jerome Bivens, who breaks down the role and function of grand juries and argues against their use in high-profile cases

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EDDIE CONWAY, FMR. BLACK PANTHER, BALTIMORE CHAPTER: Welcome to The Real News. I’m Eddie Conway in Baltimore.

Dr. Martin Luther King Jr. was born on this day, January 15, 1929. To honor the man and his legacy of social and economic justice, I recently sat down with veteran Baltimore attorney Jerome Bivens to talk about one aspect of the criminal justice system and whether it serves the interests of the people.

Bivens have been practicing solo law for the last ten years, and he’s been handling criminal cases in Baltimore City and in other states. Prior to that, he has also been practicing civil law two years. Before that, he practiced with the public defender’s office for 18 years, where he got the bulk of his experience. And then, in light of the Ferguson case, in Mike Brown’s situation, and the New York case with Eric Garner, there’s been some concern in communities about this grand jury, how it works, the proceedings. And I’m hoping today that attorney Bivens will share with us his expertise on how the grand jury works. So please join me in welcoming attorney Bivens here.

Welcome to The Real News.

JEROME BIVENS, BALTIMORE DEFENSE ATTORNEY: It’s my pleasure, Mr. Conway. It’s my pleasure.

CONWAY: You know, as I was saying, we are concerned about this grand jury, how it works and why it works and why it’s not working in our interests, so to speak. But maybe before that, would you want to give us a little background on yourself, anything that I might have missed or anything that you’d like to bring?

BIVENS: Well, no. I think you’ve covered everything. For the last ten years or so I’ve been in solo practice. And my primary focus has been criminal defense work. Before that, for two years I worked for a civil firm, a civil law firm. And prior to that, for the first 18 years of my career, I worked in the Office of the Public Defender. So I have quite a bit of experience in criminal defense litigation.

Now, on the issue of grand juries, just by way of background, a grand jury is just like a petit jury. That is to say, anybody who’s eligible in Baltimore City to sit on a jury can sit on a petit jury, which is either a six-member jury or a 12-member jury, or they can sit on a grand jury. And the grand jury consists of 23 members, and they sit for periods of four months at a piece.

Now, if you are a registered motor vehicle driver in Baltimore City or if you’re a registered voter in Baltimore City, you can be called at any time for jury duty. And as I said, you can either sit on a grand jury or you can sit on a regular petit jury, which is 12 members in a criminal case, and under certain circumstances a petit jury in a civil case is six members.

Now, the major difference between grand jury proceedings and other jury proceedings is the grand jury proceedings are secretive. That is to say, they’re private, they’re not open to the public. In addition, once a grand juror has completed his or her service, they are prohibited by law from discussing or disclosing any of their deliberations or any of the grand jury proceedings.

The last distinction between a regular jury and a grand jury is the grand juries are attended by prosecutors. That is to say, the prosecutors conduct the process, they conduct the evidence, they call the witnesses. And, again, the processes with grand juries are closed to the public.

CONWAY: So how do we determine what goes on behind the scenes? I mean, if we have an interest in, say, the Mike Brown case or the Garner case, whatnot, how do we get insight in that process, or how do we get input? Or do we?

BIVENS: Well, we don’t, because the law says that grand jury proceedings are private. And, see, this is the problem. When you’re talking about high-profile cases, it’s counterintuitive for the government or the state’s attorney’s office to impanel a grand jury, because when you have a high-profile case, you have a case that’s already garnered media attention, public interest–and there are a lot of questions that the average person wants to have answered about the Michael Brown – Darren Wilson situation, the Eric Garner situation, Tamir Rice situation in Cleveland. If you have a secret process or a secret proceeding, nobody knows or nobody gets to know what has gone on.

You know, I always use the example of the Rodney King case. Now, once upon a time, Rodney King was assaulted by police officers in California. The assault was videotaped and the entire world saw the videotape. In that case, those police officers were charged. They were tried in a public criminal trial. They were acquitted, most of them. But it was a public trial. So we don’t have the questions in Rodney King’s situation that we have with Mr. Garner in New York and with Michael Brown in Ferguson. It was a public trial. It was open to the public. So everybody knows what happened. You may not agree with the result, but everybody knows what happened.

CONWAY: So what happened with Tyrone West? We have a case here, just like the Michael Brown case in Ferguson or the Garner case, or probably the Oscar Grant case out in Oakland, the Tyrone West case here, I don’t recall anything of a grand jury taking place. And it seemed to have been the officers were exonerated without anything at all. Is it sometimes a grand jury can be used and then sometimes it’s not used? What’s the situation there?

BIVENS: Well, the answer that question is yes. And you can’t mention Tyrone West without mentioning Kollin Truss, and you can’t mention Kollin Truss trust without mentioning two cases [crosstalk]

CONWAY: And Kollin Truss, what case is that Kollin Truss?

BIVENS: Kollin Truss was the individual who earlier this year was videotaped being assaulted by a Baltimore City police officer on the corner of Greenmount and North Avenue. And, interestingly enough, Mr. Truss got lawyers, and his lawyers made this closed-circuit TV camera video public. Once the video was made public by Mr. Truss’s lawyers, that’s when the police department and the state’s attorney’s office and the powers that be got involved. And that police officer involved in Mr. Truss’s case was ultimately charged. He’s at least pending perjury charges.

Now, you mentioned Tyrone West.

CONWAY: Wait, wait, wait, wait. Hold it. Perjury charges for beating? I saw that video.


CONWAY: You’re saying that he’s pending perjury charges for beating a guy up in public and having that video, and that’s all that they’re doing? Who decides that?

BIVENS: Well, what had happened was this officer involved in that case falsified his police reports. That is the basis for the perjury charges. But he’s also pending other charges associated with the assault that we saw on the video.

Now, you mentioned Tyrone West. In Tyrone West’s case, the state’s attorney’s office conducted their own investigation. And as a result of their investigation, they determined that no charges be brought against the officers involved in that case.

CONWAY: So you’re saying sometimes the grand jury has nothing to do at all with deciding who gets indicted and who don’t. Sometimes you’re saying that it’s stopped before it gets to the grand jury?

BIVENS: That’s correct. Sometimes it stops before it gets to the grand jury, and charges are brought. Sometimes charges are not brought and it never gets to the grand jury.

I would like to mention at least two other cases involving Baltimore City police officers, two other high-profile cases, because that’s what we’re talking about. There is a case where a Baltimore City police officer was charged, prosecuted, and convicted and is now in jail for animal cruelty in Montgomery County. There are two Baltimore city police officers who are now pending criminal charges, pending criminal trial in the Circuit Court for Baltimore City for animal cruelty.

Now, interestingly enough, with these cases involving animal cruelty, charges were brought against these officers almost immediately. There was no hesitation. There was no employment of a grand jury. Charges were brought instantly. But somehow in Michael Brown’s case in Ferguson, Missouri, and in Mr. Garner’s case in New York, grand juries were used and no charges were brought. So you have to ask yourself: why is there a disparity?

CONWAY: And who decides? I mean, okay, if charges can be brought, obviously somebody makes that decision somewhere before it gets to the grand jury. Who decides that?

BIVENS: Well, in the most basic level it’s the cop on the street, as it were, who decides whether or not to charge somebody. But if you get beyond the police officers, it’s the state’s attorney’s office, ’cause remember what I said about the grand jury process? It secret. The grand juries are prohibited from disclosing their proceedings. And it’s attended by the state’s attorney, it’s attended by the prosecutor. So, ultimately, it’s in the hands of the prosecutor.

CONWAY: Okay. So the prosecutor can determine that a Tyrone West, say, can end up dead at the hands of the police officers and nothing happens, there’s no investigation in terms of the grand jury and that kind of stuff, but yet a dog will get killed and people will immediately be charged and go to jail.

BIVENS: Well, that’s the way it seems that these situations have evolved.

And, again, the problem with the grand jury in high-profile cases is it’s secret, and when you have a high-profile case, I think it’s just bad practice to have secrets.

CONWAY: So what is it that we can do to have more visible public kind of control over what’s happening with the grand juries? There’s something–some kind of way we can interact in terms of laws to change that?

BIVENS: Well, remember what I said. The grand jury’s office is definitely–I’m sorry–the grand jury is definitely affected by the state’s attorney’s office. And my view, since the state’s attorney is an elected official, we have to use our political clout and our political pressure to sort of influence, if you will, the actions and the conduct of the state’s attorney’s office when it comes to handling these high-profile cases. And I agree with you. If someone loses their life, then people want answers, just like if somebody kills somebody’s pet dog. People want answers. And, unfortunately, in Ferguson and in New York, these grand juries did not give people the answers that they were looking for.

CONWAY: Okay. So you’re saying that, then, we have to interact with the state’s attorney’s office in some kind of way to change that, because it seemed to me–and I’m not sure I’m understanding what you’re saying–it seems to me that sometimes they can have indictments without a grand jury. Sometimes they have a grand jury and have indictments. And then sometimes nothing happens at all.

BIVENS: Well, remember, an indictment is just a charging document. It’s just a way of charging someone with a crime. People can be charged with crimes via the district court. People can be charged with crimes via the commissioner’s office through criminal summons. Or people can be indicted. People can just be arrested. The point that I’m making is, to the extent that politicians, which the state’s attorney is, are influenced by the voters, which you and I are, then we ought to exercise that influence.

CONWAY: Okay. Alright. So, alright, I’m still caught up on the dogs, the dogs being killed and charges being immediately brought–

BIVENS: And there’s an officer in jail already.

CONWAY: –and people going to jail. And then you have cases like Tyrone West and you have other cases, and nothing actually happens at all. And then, when it is quote-unquote, a really high-profile case, it goes into the grand jury, and then still nothing happens. I mean, is there something wrong systemically with that process?

BIVENS: Well, let’s put it this way. We both acknowledged–and you and I discussed this before we went on air–we have a great amount of respect and admiration for the job that most police do. But every once in a while, if something irregular happens, it seems to me that the politicians, that is, the state’s attorneys, should do everything that they can to maintain transparency. And, again, transparency and the grand jury process don’t really go hand-in-hand, because, as I said and I’ve said already, grand jury proceedings are secret. It seems to me in Ferguson, Missouri, and New York with Mr. Garner, and now with Cleveland and Tamir Rice’s killing, the state’s attorney’s office ought to charge the officers and let the cases go to trial, just like they did with Rodney King. And again, Rodney King’s attackers were acquitted.

CONWAY: Okay. You know, even as you’re saying this, I’m thinking of the amount of people, obviously, that must have went through the grand jury process. I mean, there’s an overwhelming black population of prisoners in this state–and, of course, in the United States itself. So is there something–maybe some racial bias or institutional racism or something in that process that–’cause, you know, I’m still stuck on the dog thing. I mean, people go to jail for the dogs, and Tyrone West is dead and nothing’s happening. Is there something, some kind of institutional racism or bias or something just in the way that’s set up, the whole grand jury–. I understand you’re saying that citizens participate, but who orchestrates?

BIVENS: Well, the question about racism and institutional racism is a question that I can’t really speak to. But there is an old saying when you’re talking about grand juries, and that is that a state’s attorney can indict a ham sandwich. And that is to say that a state’s attorney can have the grand jury do whatever the state’s attorney wants the grand jury to do. And I think this is the problem in Ferguson, as well as New York. The state’s attorney’s office and the police department, they work hand-in-hand. So when you have the state’s attorney’s office conducting a grand jury investigation of the police department, it just doesn’t look good. It would seem to me that a special and independent prosecutor should be brought in to conduct these type of investigations. And if that’s not the case, then perhaps the federal government should be brought in to conduct these investigations, because, again, people want these investigations, because people want answers. And if you have a grand jury process, odds are people are never going to get the answers that they want.

CONWAY: Okay. So thank you for coming in–

BIVENS: Thank you.

CONWAY: –and sharing.

BIVENS: Thank you. It’s my pleasure.

CONWAY: And thank you for joining The Real News.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.

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