The tragedy in Minneapolis has certainly put Senator Amy Klobuchar on the spot. She is, or has been, a front runner to be Joe Biden’s running mate. She is also the ex-prosecutor in the Minnesota county that includes the city where a police officer is accused of murdering George Floyd. It turns out that in 2006 Ms. Klobuchar had the accused killer, Officer Derek Chauvin, in her sights in an unrelated killing by police, but no charges were handed up.
It’s one thing for Ms. Klobuchar to point out that she had already moved up to the Senate by the time the grand jury balked at indicting Officer Chauvin in the 2006 case. Fair enough. It’s another thing, though, for her to blame the grand jury system itself. Which is what she just did, when asked by Andrea Mitchell of MSNBC about more than two dozen police brutality cases that went uncharged during her tenure as D.A.
Ms. Klobuchar’s circumlocutions strike us as a serious blunder. Particularly when she reckons that letting grand juries handle such cop cases was, as she told Ms. Mitchell, “wrong.” Said she: “The cases that we had involving officer involving shootings went to a grand jury. That was true in every jurisdiction across our state and that was true in many jurisdictions across the country. I think that was wrong now.”
It would have been better, she suggested, had she taken “the responsibility and looked at the cases and made the decision myself.”
This is a moment to ask — yet again — the question: What is a grand jury? The answer we feature is that a grand jury is a right. The right is vouchsafed at the federal level by the Fifth Amendment, which says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” The Fifth allows for exceptions in cases arising in the land or naval forces during a war.
The Fifth Amendment’s grand jury right covers only federal crimes, though. The Supreme Court has not — yet — incorporated the grand jury right against the states. Some state constitutions enshrine the grand jury right, but not Minnesota’s. For the most serious crimes in the North Star State, the right is guaranteed by law and practice, including at Hennepin County, where George Floyd was slain.
It is grand juries that decide whether probable cause exists to bring charges against a suspect. They have an investigative role, but they do not try cases. Their real function is to protect against an overly eager or vindictive prosecution. The grand jury, Chief Justice Earl Warren wrote in a case called Wood v. Georgia, serves as “primary security to the innocent against hasty, malicious and oppressive prosecution.”
Warren characterized what grand juries perform as “the invaluable function in our society of standing between the accuser and the accused . . . to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” They, in other words, are a part of the due process that is so fundamental to true justice in any state or country.
The tragedy in Minneapolis, though, is precisely the kind of situation when these due process rights must be held most dear. Every American is revolted at the video of George Floyd, handcuffed and in custody on the ground, being kneed in the neck by Officer Chauvin for the long minutes while he begged to breathe and bystanders pleaded for his life. It has to be one of the most horrifying pieces of evidence in our country’s history.
Ms. Klobuchar seems to lay to bigotry the failure of so many grand juries to indict police officers. “There is systematic racism,” Ms. Klobuchar told Ms. Mitchell. It’s hard to see the logic of doing away with grand juries, though. They are not inherently racist (the early mists of the grand jury go back to the Magna Carta). New standards may have to be legislated, or better D.A.’s appointed. Throwing out rights of the accused makes no sense.
We don’t mind saying that Ms. Klobuchar emerged from the primaries as a particularly promising figure. We understand that she is being attacked on the left for not having been tough enough on police. Yet it’s a sign of weakness to deal with that charge by blaming a fundamental right of all accused of a crime in America. Such rights are, after all, one of the things presidents, and vice presidents, are in office to protect.
Correction: George Floyd is the name of the victim in the police killing in Minneapolis; the name was incorrectly given in the early edition.