Grand Juries

"A grand jury is a legal body that is empowered to conduct official proceedings to investigate potential criminal conduct and to determine whether criminal charges should be brought. A grand jury may compel the production of documents and may compel the sworn testimony of witnesses to appear before it. A grand jury is separate from the courts, which do not preside over its functioning."  Wiki

Grand Juries were first created in English law in the time of Henry II.  He was the first Plantagenet king of England (and of about half of France if you include his wife's posessions in Aquitaine).  The purpose of the GJ has always been to limit the sovereign's ability to try people arbitrarily in whatever form of proceeding he liked without regard to the likelihood of an actual crime having been committed.   The idea is that sovereigns can be influenced by; reasons of state, the demands of mobs, sheer capriciousness or any number of other factors.  The Grand Jury exists for the purpose of giving the "peers" of the suspect a chance to tell the sovereign (or his representative - the prosecutor) that there is not enough evidence to think the suspect BROKE THE LAW.

The issue before the GJ is not whether or not the suspect made bad decisions, did stupid things or is an unpleasant object.  The issue is simply a sufficiency of evidence to make it likely that the suspect BROKE THE LAW and therefore a trial by jury is justified.

It is evident that many people do not understand or accept the function of the GJ.  There are a lot of ignorant people in the US. Many of them have no conception of the structure or functions of government.  They tend to operate on emotion rather than reason and in situations like Ferguson and NY City the process is of no interest to them unless the result is something they like.  If they do not like the result there are demands for the abolition of the present rule of law in favor of what? Lynching?  Arbitrary prosecutions by the states or federal government?

Lawyers like to say that a GJ will indict a ham sandwich if led in that direction by the prosecutor.  That is simply not the case however much lawyers would like to believe in their Svengali-like powers of persuasion.  I served on a Virginia GJ 10 or 15 years ago.  It met on and off for 6 months and heard many, many cases presented.  We refused to return an indictment in 2 of those.  The 1st time it happened the Commonwealth's Attorney (state prosecutor) lectured us about how hard his people worked to assemble evidence, how sure they were of the justification for a trial, etc.  He then waited for an apology.  One of the jurors asked him if it was his belief that we should vote however he wanted us to vote.  He left the room quickly in the sure knowledge that if he answered the question wrongly the GJ would speak to the Attorney General of Virginia.

At the first and last meeting of that Grand Jury a state district court judge appeared briefly to remind us that if we knew of or suspected any other criminal behavior we had the right to open an investigation into the matter.

I like Grand Juries.  pl

Comments

[William R. Cumming]

ME TOO! Served on a dozen in the Virginia Circuit Court for Arlington/Falls Church!

[steve]

In 25 states the use of grand juries is optional--for prosecution of any crime. In those states, it is frequently used in high profile cases where the prosecutor can always say whether the finding was a true bill or no bill--"it was the grand jury not me".

Only 19 states allow the grand jury to conduct independent investigations.

The other states, and the federal system, only allow grand juries to investigate cases brought by the prosecutor. And that tends to be the modern trend.

http://campus.udayton.edu/~grandjur/stategj/funcsgj.htm

Although stats on the percentage of no bills in state systems doesn't seem readily available, in 2010 out of a total of 163,000 federal prosecutions federal grand juries returned no bill findings all of 11 times. While it appears those 163,000 cases also include prosecution via criminal complaint lumped together with prosecution via grand jury and is thus a flawed ration, the figure of 11 no bills speaks for itself.

http://www.washingtonpost.com/blogs/the-fix/wp/2014/11/24/the-rarity-of-a-federal-grand-jury-not-indicting-visualized/

I'm glad you took your grand jury service seriously enough to vote the no bills.

[Charles I]

I'm suspicious of any prosecutorial or investigative process with stats like these:

"In the more than 162,500 cases prosecuted by U.S. attorneys from 2009 to 2010, grand juries voted not to return an indictment in just 11"

http://news.yahoo.com/ferguson-federal-grand-jury-indictment-statistics-history-134942645.html

[steve]

I should add, imho that the legislated degradation of the grand jury system from its original mission goes hand in hand with the use of compelled arbitration--as opposed to private lawsuits with a jury--in private civil matters. Courts gave their stamp of approval to compelled arbitration in suits agains brokerage firms in the mid-eighties even when private rights to sue were enshrined for violations of public policy such as rule 10b(5). The arbitration system imho is a rigged one.

The strong do not want the weak to have access to the full panoply of rights that actual litigation offers.

[Mark A]

The grand jury concept is overrated.

There are too many laws on the books today, making it very easy for the prosecutors to argue that some arbitrary law was broken in some way, thus forcing the grand jury to indict.

What may have been started as a noble legal concept has been turned into a rubber stamp process for an increasingly overzealous police state.

[scott s.]

Spent a year on the grand jury for the Hawaii 1st Circuit (Oahu). The GJ was overseen by one of the circuit court judges and the judiciary effectively ran the GJ. In Hawaii, the possibility of an "investigative" GJ existed in law, but seems to never been used by the Prosecuting Attorney or State AG (we would get state cases once a month, mainly tax fraud, welfare/unemployment fraud, and insurance fraud). I don't see the GJ as a "fact finding" body -- that is reserved for the adversarial process of a trial and trial jury. The purpose of the GJ is to determine if probable cause existed that 1) a specific crime was committed 2) the crime occurred within the jurisdiction of the 1st Circuit 3) the named accused did commit the crime. We had our own counsel (mainly to help when certain elements of an offense were in question) and could question witnesses. Typical cases were theft, unauthorized control of a propelled vehicle, promotion of a dangerous drug, things like that. The most difficult were sexual assault of a minor. Since my time on the GJ an amendment to the Hawaii Constitution was passed which allows indictment by "written information" (PA provides a summary of the evidence in support of a bill to the court) and that now appears to be the preferred method, I guess because it noes not require producing witnesses. I don't really agree with this change myself. I also think the "indict a ham sandwich" is BS.

[ex-PFC Chuck]

This video of an MSNBC segment strongly suggests that the prosecutors office was something less than even handed in its presentation of the case to the GJ:
http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666

[tv]

"There are a lot of ignorant people in the US."
UNDERSTATEMENT of the year.

[AEL]

After much discussion, grand juries were abolished in Canada decades ago.

It was perceived that they did not carry their own weight. Primarily because in virtually all circumstances the juries returned the verdict desired by the prosecutor. I.e. it was simpler to let the prosecutor decide (and by extension, take responsibility for that decision)

[steve]

Some states grant investigative power to grand juries independent of the prosecutor. In other words, the grand jury can look at any crime it wants to regardless of the prosecutor's own agenda. They are independent and could indict the prosecutor if they felt like it. Theoretically, in those states the prosecutor only acts as the grand jury's attorney. Some grand juries have dismissed their "attorney" and proceeded on their own. Hence, the "runaway grand jury" description.

I doubt though even in those states, the independence of the grand jury is given much practical emphasis.

Some states only grant investigative power to grant juries subject to what the prosecutor wants to investigate. I assume from your description that is the situation in Hawaii.

[Tyler]

Chuck,

Let me tell you how shocked I am that when the media's "white cops war on black babies' bodies"/Democratic 2014 GOTV wvent blew up in thier face, they grasp at straws to not admit guilt.

I used to think they were just stupid, now I see its stupid and evil.

[C Webb]

"There are a lot of ignorant people in the US"

Ignorance by volition or by design?

[turcopolier]

C Webb

Neither. They just "growed." pl

[turcopolier]

Steve

Once again, I am blessed to be a citizen and resident of the Commonwealth of Virginia. It appears that our GJs are among the most powerful in the Union. pl

[Anonymous]

"If they do not like the result there are demands for the abolition of the present rule of law in favor of what? Lynching? Arbitrary prosecutions by the states or federal government?"

It seems that both are being favoured. The rule of law is being preserved for the case being tried and then put aside when the mob lynches someone unrelated to the affair.

Any white person can be the subject of arbitrary vengeance, because both the law and the inciters of the mob a priori reject the notion that arbitratry vengeance is happening. So no hate crime caused by media frenzy is ever prosecuted as such, to the point that even here in SST there are people saying about America:

"This isn't S. Africa or Zimbabwe or wherever that kinda thing happens. There's no version of Hutu radio here instigating mobs of blacks to go out and murder white people. This sounds like the stoking of unnecessary panic and fear."

Perhaps he should have also said that it is unbecoming of people to hammer unnecessary panic and fear on the head of white americans now that "personal computing, the Internet, Starbuck's, mega-banks, and MP3s" have been invented.

Anyway, avoidance to connect the dots is in effect the way in which the social fabric is being teared apart even while supremacy of the law is maintained.

But since liberals have established that any white person can now be chosen arbitrarily to be the one who stops the bucket of ignorance and hatred with his own body, let them rejoyce when said bucket comes upon them in the form of a guillotine blade.

[MRW]

It is against the law for police in NY to use chokeholds, so what gives?

[turcopolier]

MRW

"Unlawful? Who says that it was unlawful" pl

[Fred]

MRW,

It is against the policy and procedures of the NYDP according to this morning's latest news. The coroner did not say the cause of death was a chokehold.

[Fred]

Just a week ago the NYC crowd was telling the people of Missouri that their judicial system did not meet NYC's standards, now they are upset with their own fellow residents who are serving on the grand jury? My oh my. I'm sure that they will be back to telling the rest of the country what we need to be doing come Monday.

[Fred]

Well it is better than the FISA Court review.

[Peter C]

A Grand Jury does more than hear criminal complaints. Grand Jury looks into the inner functions of County, City, Special Districts, and any functions that governments perform.

[Rocketrepreneur]

Pat,
My concern is less with grand juries per se and more with the inherent conflict of interest you get with a prosecutor handling a police killing case with a grand jury. The percentage of police brutality cases before grand juries that result in no indictment compared with the indictment odds for almost all other types grand jury cases should probably tell us something.

The prosecutor in theory is supposed to be arguing for an indictment, but a prosecutor has to maintain a good working relationship with the police department and local investigators, so they have a built-in conflict of interest when it comes to investigating police wrongdoing. The anecdotal evidence from both of these grand jury cases was that the prosecutor was *not* trying to push for indictment, but was instead trying to muddy the waters.

I'm not sure the best way to resolve the conflict of interest here (probably something best to let several states experiment with different approaches), but my guess is that if they did deal with such conflicts of interest you'd see more police officers indicted for homicide. One thought of how to do this might be to have an independent state-level prosecutor who solely deals with police violence cases, and who has a few investigators assigned specifically to them. That way if there really is a case, the prosecutor presenting to the grand jury will hopefully be more likely to really try to make the case if there is one.

Even more indictments won't necessarily mean a big increase in actual convictions from trial courts, but I think things would be better off if more police violence cases were tried in court where the facts could be aired, and witnesses cross-examined.

Giving the police the impression that they have impunity when it comes to killing citizens in the line of duty is likely to lead to more violence. Having strong accountability is likely to lead to more attempts to police in a less confrontational manner. That would be a good thing IMO.

Not sure if that's even worth $0.02, but I figured I needed to say it somewhere.

~Jon

[C Webb]

Like mushroooms...

Kept in the dark, fed on b$.

[ex-PFC Chuck]

Tyler, I don't follow the point you're trying to make, or how it pertains to the question of even-handedness with which it applies to this particular GJ finding. It's true that the venue on which the video appeared leans "left" in its political coverage (I use quotes because I believe the differences between the two major parties are far less significant than their similarities; but I digress). But the presenter (O'Donnell is it? I don't watch MSNBC any more than I do Fox News, which is almost but not quite never) to be pointing to some hard evidence of what is at best a serious mistake, and at worst a deliberate attempt to mislead the jurors.

I would expect that a reasonably well-run prosecutors' office would have a good handle on what the current law is with regard to criminal matters. It would be interesting to see what the assistant prosecutor who handed out the code extract to the grand jurors had to say under oath
regarding how that came about. Ditto the "update," days later. Did she do the research herself and simply made a mistake? Or did she simply pass on a document that was handed to her by a superior or other person in the office? If the latter did she realize it was outdated and question that fact, and if so who responded and how? Or was she explicitly or implicitly asked/ordered to hand out this particular outdated version of the law? I could go on.

I generally agree that in an ambiguous situation the police should be given the benefit of the doubt. The question here is "Exactly how ambiguous was it?", and did the prosecutor's office intentionally try to mislead the jurors on this matter.

[Walter]

PL, so what mechanism do we have to right the wrong that occurred in the Garner case?