“The goal everyone should be seeking is to not have this occur again, and again, and again.”
That’s what University of Akron law professor Michael Gentithes said is not being accomplished when all the public typically hears from grand juries about fatal police shootings is whether they voted yes or no – mostly no — to a criminal indictment following a presentation from prosecutors.
A grand jury’s mere up or down vote wastes an opportunity to tap into what he calls the “lay expertise” of the jurors. If they knew they could offer more than just a secretive and unnuanced binary vote, he said, perhaps it could help prevent the next killing of a resident by police.
Such was the case Wednesday when a Summit County grand jury issued a no bill — no indictment — in a grand jury that was convened over Akron police officer Michael Novak’s 2024 killing of a 54-year-old Akron man named Michael Jones, who was suspected of not returning a U-Haul truck.
The decision to decline an indictment of Novak came after special prosecutors with the Ohio Attorney General’s Office presented evidence gathered during an eight-month investigation into the shooting by the Ohio Bureau of Criminal Investigation.
To University of Akron law professor Michael Gentithes, the current grand jury model for determining criminal charges from police killings shields prosecutors from public criticism from both sides of the spectrum — those who ardently believe the killing was justifiable or outright murder — when a controversial decision is made. Prosecutors can claim it was the grand jury’s decision, not theirs.
Earlier this year, Gentithes published an article in the University of Illinois Law Review that argues the empowerment of grand juries is vital to criminal justice reform. The paper was instigated by Jayland Walker’s killing in 2022 and the weeks-long grand jury proceedings that followed in 2023, where jurors didn’t indict any of the officers involved. Heated protests followed, including one on Copley Road in West Akron that resulted in officers using tear gas and pepper spray.
Signal Akron’s Doug Brown spoke with Gentithes on Thursday morning, one day after the Michael Jones grand jury convened and concluded with no indictment issued. A Summit County grand jury will soon decide whether Officer Davon Fields will be indicted or not for killing 15-year-old Jazmir Tucker last Thanksgiving night.
The conversation has been edited lightly for length and clarity.
Why did you decide to write this paper?
By background, I was an appellate defender in the Chicago area for about eight years before getting into academia, so I hadn’t personally worked with the grand jury very much. But obviously, as something as dramatic as the Jayland Walker shooting happens down the street from your office and you teach criminal procedure at the local law school, it just seems like something you should be keeping a close eye on.
I got really fascinated with how the grand jury process was playing out and wanted to learn more and think more about what those processes look like and maybe what they should look like across the country when we have an officer-involved shooting.
Obviously, you knew about how grand juries worked prior to writing the paper, but did you learn anything new during the process?
I learned even more about how starkly different the grand jury process can be in an officer-involved shooting than it is in a typical case. I knew that anecdotally, but as I started to research it more [I] realized also the kinds of breadth and depth grand juries have historically been able to bring to issues, not only in the criminal realm, but in other realms.
That made it really interesting to think about what a grand jury COULD do beyond what it typically does now. Like what you’re seeing, what you just saw, in the Michael Jones case — a black box with a thumbs up or a thumbs down on potential charges, but not much else about what the grand jury really thought about the case, whether they think even if criminal charges aren’t appropriate, if there are other things they would suggest, if there are other changes or other investigations they would posit we ought to pursue.
So I’ve been thinking more about what grand juries historically have done in the past and could do in the present.
Before we talk about grand juries on police shootings, can you talk about grand juries on ordinary criminal cases?
To take a step back, grand jurors themselves are typically serving for a pretty long stretch of time and they’ll meet several times over that period, maybe a couple of months.
The grand jury process is not adversarial, it’s just the prosecutor presenting whatever evidence they collected about a potential case and determining whether there’s enough to go forward with charges — whether there’s enough for a ‘true bill’ of indictment.
Prosecutors typically don’t do a lot of investigation about each individual case but that will vary somewhat with the complexity of the facts, but they’re mostly relying on details collected by investigating officers. That means the presentation is fairly brief and there aren’t necessarily any opposing viewpoints presented. Grand jurors, like what you see in a typical trial, they don’t necessarily have any legal training, and the prosecutor is the only legal expert in the room.
There’s an old adage that a grand jury would indict a ham sandwich if the prosecutor told them to. I think that’s probably stretching things a little too much, but it certainly reflects the fact that, as far as legal background and knowledge, the prosecutor has an awful lot of control in the typical case because they’re the only ones presenting the evidence.
These will be processed quickly — a grand jury could hear 10 cases in a sitting in a typical case because they’re only presenting very briefly on each one. If they’re serving for several months and at each convening of the grand jury, they’re hearing double digit numbers of cases, they might process 100 cases, but it varies by the complexity and depth of presentation that the prosecutor chooses.
The information presented isn’t adversarial tested (with no one to challenge the prosecutor’s evidence) and the accused at that stage doesn’t have the right to representation in the grand jury room. The typical rules of evidence that might exclude certain pieces of hearsay or certain types of evidence don’t apply.
And that’s what distinguishes the ordinary grand jury process from the process in an officer-involved shooting.
For grand juries on police shootings, I’m assuming grand jurors are selected through the same process as ordinary criminal cases?
The selection mechanism doesn’t change but the type of service often does.
I’ll note a couple of things. As an example, in the Jayland Walker case, a special grand jury was convened to hear that case only and to hear evidence for several weeks, including officer testimony — which is rare in a grand jury proceeding to hear testimony from the accused — and lots and lots of information about the case. I think it included more than 100 interviews, physical evidence and boxes of records.
Jayland Walker is just one example. You see similar types of presentations in all sorts of flash-bulb officer-involved-shootings — Tamir Rice in Cleveland, Michael Brown in Ferguson. Very detailed presentations.
For Jayland Walker, the grand jury was just convened for that case, that’s all that grand jury heard. But in some other officer-involved shootings, the grand jury might have already been convened in a normal course of events. But unlike those other sessions, where they might process double-digit numbers of cases, they’re going to focus just on one case for maybe a day or more than one day.
What are grand jurors asked to do in officer-involved shooting cases?
Let’s contrast it with a typical case where a grand jury is just asked whether there’s probable cause sufficient to support an indictment. It’s a fuzzy standard, but it’s a reasonable belief that a crime has been committed and that this individual is likely the one who committed it.
State law varies [for police shootings], and Ohio doesn’t have a specific use-of-force statute, while other states often do that rely on reasonable belief standards for officers. Using Jayland Walker as an example again, grand jurors are first asked to decide if the shooting was justified — if other officers would have reacted in the same way — and only if they find that the shooting was unjustified do they then proceed to decide whether there’s probable cause to believe the officers committed the crime.
Which crimes the grand jurors are instructed on, in both the typical cases and officer-involved shootings — that’s also at the discretion of the prosecutor. They don’t necessarily have to present all the possible charges that might be out there. There’s a limited menu of options for these untrained members of the community to consider at that stage.
For officer-involved shootings, what would you like to see or what could be done differently than it is now?
So grand juries have that limited menu of options, including determining the reasonableness of the officer’s shooting and, if it wasn’t a reasonable action, a potential criminal charge. In officer-involved shootings, they receive a large amount of information. They know more about the incident than maybe they’re given credit for and they developed some expertise to prevent some future shootings or tragic situations like this.
Beyond that simple up or down vote on an indictment, they might be able to consider broader departmental inquiries, maybe publicly reporting their findings and suggestions. They might consider changes to substantive law because … the facts they are presented with don’t meet all of the elements of a particular statutory definition of murder or some other form of homicide. But perhaps they suggest a change to that substantive law would cover this conduct in some way. Or perhaps they help define what civilian review boards in the wake of a tragedy like this [could look like].
Grand jurors don’t have to be limited to just that simple up or down vote of indictment, and, historically, they haven’t always been so limited. That’s just been the modern development.
Are there structures in place for grand juries to actually do these things or would they have to get together among themselves afterward?
That’s part of the problem – no one provides the advice to grand jurors themselves about what all jurors can do, what powers they have, what calls for investigation or recommendations they might be able to make.
Having some kind of advocate on behalf of the grand jurors themselves, just in an advisory capacity, to think more about these options, might be useful.
You wrote about ‘lay expertise.’ What’s important about that compared to, for example, academics and others claiming expertise on an issue?
It ties into what makes grand juries important and why we have grand juries to begin with – they are representative of the community’s perspective on particular action. Because they have that grounding in the community’s mores and moral compass, once they are provided with the all of the information about an officer-involved shooting and can see all the circumstances that led to this tragic event — tragic in all senses — once they have all that information, they can bring to bear all that community’s sense of morality on that situation and in situations like it.
Rather than saying yes, this meets the definition of a crime in these narrow circumstances or not, maybe there are other things they can do to prevent those tragedies because now, despite being lay persons at the start, they have an understanding of what led to this tragedy, how that might be impeded in the future, and they aren’t career politicians with agendas on one side or the other of the aisle. They’re just representing what the community would want in situations like this and how the community might prevent tragedies like this in the future.
And I think there’s public demand to hear the grand jury’s thoughts, especially in a case when no true bill is returned. That doesn’t necessarily mean the grand jury thinks everything is hunky dory in the process or, often, that officers responded in a way that they were trained to respond and did everything correctly according to their policies and procedures. But there could be flaws in those policies and procedures which becomes apparent after reviewing all the evidence in a tragic situation like this that the grand jury could help highlight.
I’ve also suggested that there’s a big push for civilian oversight, civilian review of police policy and procedures in the wake of these tragedies. Grand juries and grand jurors themselves learn a lot about individual cases that they could use to help advise those civilian mechanisms to investigate ways to help prevent similar problems in the future.
What should we be talking about now that we haven’t talked about so far?
How to avoid these problems in the future. I wrote this article in an interesting time in Akron’s community history and in criminal procedure across the country.
I tried to be very balanced about how I present this. It’s a tragic situation for everyone involved, including the officers themselves, and I think the goal everyone should be seeking is to not have this occur again and again and again. Maybe the grand jury process can be the site of some repair, some direction toward better policies, better practices, better formal criminal law definitions and more involved community voice. There are a lot of things I think we can yield from that grand jury room that might help heal and prevent future tragedies.
Before we finish – the investigation into the Michael Jones shooting took eight months, and the Ohio Attorney General’s prosecutor’s office had those files for four months. The grand jury presentation must have lasted no more than a few hours on Wednesday. The police union issued its press release announcing the no bill just after 1 p.m. The AG’s office confirmed this grand jury was convened for just that day. Does that mean anything to you, the timing of it?
First, there aren’t real good national statistics on the typical length of investigation into officer-involved shootings and lengths of presentations to grand juries. But there’s a lot of anecdotal evidence in headline-grabbing cases like Jayland Walker, like Tamir Rice, like Eric Garner and so on. The length of time of the investigation and the gap between investigation and presentation doesn’t surprise me a lot. You see often it taking a year before the grand jury is hearing evidence in a high profile case.
You’re asking about Michael Jones specifically. The amount of evidence presented, several hours’ worth — I don’t want to overextend to say that’s atypical or suspicious or anything. It really depends on the complexity of the case after that investigation has concluded. It strikes me that prosecutors were being very careful, that the investigation was fully vetted and that the evidence was presented entirely to those grand jurors.
You see a lot in really close cases where maybe there’s a crime and maybe there isn’t, but there’s a really tough call. The prosecutors almost want to present everything they can, and then some to the grand jury so that they can use the grand jury kind of like a shield for blowback.
Because if they’ve given the grand jury everything they have and the grand jury ultimately reaches a conclusion one way or another, the prosecutor can throw their hands up and say that it was the decision of the community, not my choice, and if you’re upset with the outcome either way, that’s what the grand jury chose.
That gets back to part of the reason why I think the grand jury should have a greater voice in describing why they reached the conclusions that they did, so it doesn’t look like they made an inappropriate conclusion one way or another.
But there’s nothing I’ve seen or heard about the Michael Jones case itself that makes me think there’s something inappropriate.
It took me a couple hours to go through the Michael Jones investigatory files the attorney general released Thursday morning, and I haven’t watched the two and a half hours of video they just released yet. The fact the grand jury met once and it was over in time for the police union to send a press release at 1:04 p.m. was interesting to me.
Yeah, it’s just hard to say because I don’t have enough background statistics to say what’s typical. I can say that for Jayland Walker it was much longer than that, and other cases have been longer than that, but I’m sure in other cases it’s been shorter.
I’m guessing that the Jazmir Tucker grand jury will take way longer.
If I were to take a guess, I’d say so as well. But again, you can be critical of prosecutors for varying the length of presentation but there’s also a line of argument that presenting all of the evidence to a grand jury should be standard practice (in both police shootings and ordinary cases), so if it takes a long time, it takes a long time.
The prosecutors for the Michael Jones case were from the AG’s office and the prosecutors for the Jazmir Tucker case are coming from Mahoning County. Do you think using outside prosecutors makes a difference at all?
I think the instinct to seek a neutral prosecutor to present the evidence to a local grand jury is a good one because prosecutors and the officers who may be the accused in these cases are often working hand-in-glove on a daily basis with one another. So it makes a great deal of sense to break that feedback loop and bring in a neutral party to evaluate the evidence and present it to a grand jury.
I won’t express an opinion on just how neutral prosecutors are from the AG’s office or Mahoning County, but I think the instinct to seek some objectivity is a good one.
