Grand jury is a double-edged sword

Jefferson City Criminal Defense LawyerHow does a person become charged with a crime? The first way is that the prosecuting attorney can file charges with the court. If the charge is a misdemeanor, the case is set for a trial. If a felony, there is an extra step: a preliminary hearing to make sure there is probable cause to believe the defendant committed a felony. The prosecutor must publicly put on evidence in front of the judge. The defendant is present, along with his attorney. If the prosecutor makes his case the accused is “bound over” to the circuit court where the case will be set for trial.

A second way to bring charges in the circuit court is through the grand jury. The grand jury is called to serve by the presiding circuit judge, typically at the request of the prosecuting attorney. The grand jury consists of 12 citizens selected by the court from a randomly chosen master jury list.

Once the grand jury is sworn in, they meet in secret and the prosecutor presents evidence to them in the cases he wants them to consider. There is no judge present. The accused has no right to attend, no right to question the evidence, or put on his side of the case. There is no record made in most cases. The prosecutor leaves the room while the jurors decide which “indictments” they will issue. Nine jurors must agree. The result is almost always whatever the prosecutor wants.

The fairness of this process is dependent on the judgment and integrity of the prosecutor. Most of the time the grand jury gives the prosecutor what he wants. If he has a reluctant witness, he just brings in a police officer to repeat what the victim told him. Hearsay is common in front of the grand jury.

Not only can a prosecutor get an indictment in a case that would never survive a preliminary hearing, he can easily avoid an indictment in a high-profile case by presenting his case in a way that insures that the grand jury will not indict. It’s great political cover because the grand jury gets the blame but is bound by secrecy rules that prevent anyone from knowing what really happened. The familiar criticism that a prosecutor could persuade a grand jury to “indict a ham sandwich” is only a mild exaggeration.

Unfortunately, we have real life examples: the tragic 2006 indictment of innocent Duke Lacrosse players in a case that promised national publicity to a prosecutor with too little courage and too much ambition. The recent indictment of Vice-President Dick Cheney and former attorney general Alberto Gonzales  last week in Texas (whatever we think of them otherwise) seems covered with the fingerprints of a publicity-seeking prosecutor. If the news accounts of erratic prosecutorial behavior are true, (read news stories here and here) perhaps this one will end quickly.

The fairness of the criminal justice system depends on the quality of the prosecutor: experience, mature judgment and a sense of fairness. Nowhere is this more true than in the use of the grand jury.

More posts on prosecutorial power:

Something from a former prosecutor to a new prosecutor
Criminal Cases: A roadmap of a typical case
Missouri Prosecutors join Obama “truth squad”

 

Missouri Prosecutors join Obama “truth squad”

Who is the most dangerous when they abuse power?  Police? Prosecutors? Judges?

Police work under many rules. If they do not follow the rules they eventually get caught. They can be dangerous to some individuals, but unless the judge and prosecutor join them, the potential for abuse is limited in both time and scope.

Judges are probably the least dangerous cog in the machine. They cannot bring charges against anyone. They can only affect cases that are brought before them. If the prosecutor doesn’t like the way they do business, he can kick them off the case. If the judge does something wrong in the case, a conviction can be reviewed and overturned by an appeals court.

prosecutorNow to the prosecutor.  When it comes to charging criminals with a crime he operates with few restraints and with absolute immunity. His power extends to every person who enters his jurisdiction.  He can charge anyone with any state crime if just one person is willing to make a statement that the accused probably did something that could be considered a crime. This is all it takes to put the accused behind bars, where they may–or may not–get out on bond.

Months may pass before the accused gets to see the evidence against him at his preliminary hearing. And if the charge is baseless, a judge will finally dismiss the charge. By now, the poor guy has probably lost his job, maybe his house, but hopefully not his family.

But it can still go on. If the prosecutor wants to play out the bad hand, he can bring the accused person’s enemy before a grand jury to get an indictment (instead of having a judge decide at a preliminary hearing).

There is a saying that if the government wanted to, it could indict a ham sandwich. That doesn’t mean grand juries are stupid, just that that they see and hear only what the prosecutor wants them to see and hear. They seldom indict (or refuse to indict) unless that is what the prosecutor wants.

So the prosecutor can get the accused indicted on baseless charges and the accused sits in jail for many more months. When the trial date arrives he can either dismiss the charge at the last minute or–what the heck–let an assistant prosecutor try and lose the case. They need the practice anyway.

This is why a prosecutor can be so dangerous. It’s the reason why good prosecutors are very careful about their power. And why people should be beware the prosecutor who is partisan, or even casual, about their duties. There is nothing casual about it.

Now we have the disturbing news story over the weeend that two of Missouri’s top prosecutors have joined the Barack Obama “truth squad.” St. Louis City and County prosecutors Jennifer Joyce and Bob McCullough (and others) have pledged to react swiftly to unfair attacks on Obama and to what they consider ethical violations by Obama opponents. I’m not trying offend to Democrats here, because I’d be no more surprised, and just as offended, if it were the McCain “truth squad”.

Watch the video and see what you think. Technically, they haven’t crossed any legal line. It’s kind of like offending the King: once you know what he wants, only a fool does otherwise.



Needless to say, such intimidation tactics–harmless in the mouths of bloggers–cannot be ignored when threatened by prosecutors. I consider such political involvement by prosecutors inexcusable conduct in a job that has no business involving itself in partisan politics. It’s bad enough that prosecutors must be elected in partisan contests.

I notice that the governor issued a press release condemning the “police-state tactics” of these officials.  Even so, if you are in the east end of the state, don’t look for the  governor to save you if a prosecutor decides you may have been unfair in a way that they consider criminal. The real purpose, of course, is not to prosecute opponents, but simply to shut them up.