Was shooting self-defense or manslaughter? Case reflects debate over grand juries

Brittany Pedro knows her husband was killed.

What she doesn't know is why.

History suggests she may never know.

Jason Pedro was shot outside a Chase bank on the Westside. The man accused in the shooting, James Schlenkert, told police he was defending himself after Pedro tried to rob him. Police said a surveillance video supported Schlenkert's version of events. Officers let him go.

But the Marion County prosecutor's office was not convinced that Schlenkert was innocent. The agency convened a grand jury. On Dec. 5, jurors indicted Schlenkert on a felony voluntary manslaughter charge.

Pedro's widow is relieved. But questions remain about her husband's death. The Marion County coroner's office said Jason Pedro was shot multiple times in the head.

Why did police believe Schlenkert defended himself? Why did a deputy prosecutor question otherwise? What convinced a grand jury that charges were warranted? What did the video show? Answers to those questions are sealed.

Information available to the public on the case is scant. The one-page charging document alleges little more than that Schlenkert knowingly shot and killed Jason Pedro. A police report is devoid of many specifics other than that officers responded to call of shots fired with a person down.

The details of what happened the morning of Sept. 8 may never be publicly known.

Indiana, like other states, has a highly secretive grand jury process, what prosecutors call an impartial and valuable tool to investigate a crime and bring charges against someone in difficult cases. The confidentiality of the process, though, has been the subject of criticisms after grand juries from Ferguson, Mo., and Staten Island, N.Y., declined to indict police officers for their involvement in the deaths of two unarmed men. One Indiana lawmaker has tried for years to abolish the grand jury system in the Hoosier state, and he plans to do so again.

Critics say the process lacks transparency, and should a case never go to trial, as is often the case, the merits of the investigation are never publicly known. Critics also say the use of grand juries places an unfair advantage on prosecutors who can drive the process to the outcome they want — a level of power that experts say is rarely checked.

Andrew Leipold, a law professor at the University of Illinois, said the grand jury process does not necessarily give prosecutors the authority to do whatever they want. But, he said, "there's few enough checks that I think it's fair to say that the charging power rests very largely with the prosecutor and not with the grand jury."

The integrity of the investigation

The United Kingdom brought the concept of grand juries to most of its colonies, including the United States.

But while the UK and other former colonies have abolished the grand jury system, America has not. It remains one of the few countries that use grand juries. Prosecutors determine which cases go before the grand jury. They select the jurors, preside over the hearings, decide what evidence is presented and which witnesses will testify. Hearings are closed to the public, the media, the person being investigated and his or her attorney.

With a few exceptions, federal charges have to be filed by way of grand jury indictments. The jurors look at the facts of the case, question the witnesses and determine if a person more than likely committed a crime. If an indictment is reached, the case goes to trial like any other criminal case.

Practices vary among about half of the states that use grand juries. As many as 23 people sit on the grand jury in New York, Colorado, Georgia, Maryland and Massachusetts. That number can be as few as three in Connecticut and two in Wyoming. In Indiana, six people sit on the jury.

In Marion County, the use of grand juries is rare. The agency averages about four grand jury indictments out of about 40,000 criminal cases filed annually in the past five years.

The Marion County cases typically involve issues of self-defense, such as Schlenkert's case, police-action shootings and public corruption. The cases involve witnesses with conflicting versions of what happened and long-term investigations with multiple people involved, Marion County Prosecutor Terry Curry said.

"It's usually just some sort of unique circumstances that justify using the grand jury," Curry said. "In those situations, we think it's appropriate to essentially set the circumstances out in front of citizens like you would a (trial) jury and let them know what the applicable law is, and they can make a determination."

Prosecutors defend the secrecy and investigative power of the process, saying it allows jurors to do their job without fear of retaliation. The system also forces otherwise uncooperative or reluctant witnesses to testify in front of a grand jury via a subpoena. They can be held in contempt of court if they refuse to testify.

Deputy Prosecutor Jana Skelton, supervisor of the prosecutor's grand jury division, said just like in any other criminal investigation, confidentiality maintains the integrity of a grand jury investigation.

"You might not want Witness B to know what Witness A testified to," Curry said.

Confidentiality also makes sense in preserving the reputation of those who were investigated but not indicted.

"If we knew every single person who had ever been investigated," said Leipold, the University of Illinois professor, "the harms to reputations might be very large."

Curry dismisses any notions that prosecutors wield too much sway over the process. Intentionally presenting incomplete evidence to stir a jury toward an indictment is fruitless, he said, and would result in a case that's impossible to prosecute.

"Every single criminal case, from both the prosecution and defense perspective, has both 'good facts' and 'bad facts,'" Curry said. "It would make no sense to ignore or conceal bad facts in the grand jury phase when you know it will be necessary to ultimately address those same facts in a resulting prosecution."

Doing so is not only impractical, he said, but also "thoroughly unethical."

"The thought that we would use the grand jury in some sort of inappropriate way," he said, "is simply not the case."

Skelton agreed. Placing a case in front of a grand jury, she said, eliminates any perceived biases prosecutors might have on the case.

"We don't tell (the jurors) what to do. We can't tell them what to do," she said. "The decision is theirs to make without any input from us whatsoever."

Too much power?

Some legal observers point to the two recent high-profile national cases as emblematic of what is troublesome with the grand jury system. Although jury transcripts were later released in the Ferguson case, skepticism still arose over the role of the prosecutor. In Staten Island, most of the information involving the jury proceeding remained sealed.

In a traditional court setting, jury trials and documents that outline evidence and witness statements are open to the public.

"Any time you have secrecy, you're fueling the fire of suspicion, distrust, paranoia," said Larry Landis, executive director of the Indiana Public Defender Council. "That's the risk to the criminal justice system. You lose public confidence when the proceedings are held in secret."

When a case goes to trial, the proceedings do become public. But cases often don't go to trial.

In Marion County, less than half of the 17 grand jury indictments from 2009 through 2011 went to trial, according to the most recent data from the prosecutor's office.

Among federal grand jury indictments, Leipold said, the ratio is only about 4 percent. Most cases end up in guilty pleas.

In such cases, the evidence, and the merits of the investigation, remain sealed.

Indiana Sen. Mike Delph underscores the other concern with grand juries: the power of prosecutors. The Carmel Republican has introduced bills to abolish the use of grand juries in Indiana. Delph said he plans to introduce legislation again this year.

"If you're a target or a witness or someone that's contributing to the decision-making process of the grand jury, you have very little rights," Delph said. "The person in charge of the grand jury room has complete and absolute control over you."

Delph believes the system is a useless layer of government meant to shield prosecutors from having to make politically controversial decisions.

"I think the grand jury system is more about protecting the prosecutor than anything," he said. "Prosecutors should not be allowed to hide behind the secrecy of the grand jury process."

Statistics show that not indicting in federal cases is rare. Of the 162,000 federal cases the government tried to prosecute from Oct. 1, 2009, to Sept. 30, 2010, grand juries declined to indict on only 11 of them, according to the Bureau of Justice Statistics.

Whether a similar ratio also is the case in Marion County is unclear. The prosecutor's office said by law it can only release information on cases in which an indictment is reached.

Family left with questions

Jason Pedro, a 24-year-old father of a 2-year-old son, was expecting a baby girl to be born Sunday.

His mother, Cynthia, knows her son had many run-ins with the law, but she doesn't believe he was trying to rob Schlenkert. She believes her son was murdered.

Police said Jason Pedro and Schlenkert were in a pickup truck near the bank's ATM machine. Cynthia Pedro, Jason Pedro's mother, said prosecutors told her that her son got out of the truck and ran once Schlenkert got a hold of a gun Pedro had. Jason Pedro was shot several times as he ran, his mother said, eventually falling to the ground. Once on the ground, her son was shot three more times in the head, Cynthia Pedro said.

In deciding to indict Schlenkert, the jurors clearly questioned whether the case was self-defense, Brittany Pedro said.

She would rather not see the video of the shooting. She said she does not want to see her husband's last moments.

But she also said she couldn't stand not understanding what really happened that day and why it happened.

For now, only a grand jury and prosecutors know.

"I want to see what all these people had seen," she said.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.