Is anyone really shocked that a DA persuaded yet another grand jury not to indict a police officer?

You can blame the jurors but I think the blame lies squarely on the DA’s shoulders, because Grand Juries are basically scams that allow the DA to subvert the system.

Most people don’t know what a Grand Jury is, so let’s clear that up first.*

There is a huge difference between a Grand Jury and a jury.  A jury is selected by a prosecutor and a defense attorney, who question each potential juror and have the right to remove any they think are possibly biased.  Then a trial that is open to the public is held. Both sides present evidence and witnesses. Both sides can cross examine and challenge anything the other side does.  A judge is present to make sure it all runs fairly.  Both sides then give closing arguments summarizing their version of what happened.  And in order to find guilt, the jury needs  to be unanimous and convinced “beyond a reasonable doubt.”

A Grand Jury is none of those things. A Grand Jury is a group of citizens who have not been questioned about possible bias. A Grand Jury hearing is closed and secret and not open to the public. The DA presents whatever evidence he wants to without the worry that a defense attorney may cross-examine his witnesses or challenge his evidence. There is only one side presented. There is no judge. And then the only question the jurors have is whether there is enough evidence to send it to a real jury to determine guilt or innocence.

That is a very low burden to meet, which is why 99.99999% of all Grand Juries result in an indictment.

It would be much better if we didn’t call these things Grand Juries, because people hear “jury” and they think “trial.” There is no trial in a Grand Jury.

They’re scams. If a DA wants the Grand Jury to indict, he introduces only that evidence that supports his side and ignores all the evidence that does not. If the DA wants the Grand Jury not to indict, he does the opposite.

President of the Pennsylvania Association of Criminal Defense Lawyers (and friend) Jim Swetz pointed this out:  Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

So if a DA does not get an indictment, it pretty much means he had no intention of getting one — making the whole thing a political farce, done so he can fool people who don’t understand what a Grand Jury is to think that “justice was done.”

In every other country and in many of the states, Grand Juries are no longer used. And for good reason.

If the purpose is to determine whether there is enough evidence to bring a case forward, it’s much better to have a preliminary hearing instead, open to the public, where evidence can be challenged by a defense attorney and reviewed by an independent judge.

But DAs like Grand Juries because it gives them an advantage.

It allows them to put witnesses on the stand, under oath, without having to deal with defense attorneys objecting or judges stopping them from asking questions they are not supposed to be asking. And then they have advance notice of what witnesses will say at the preliminary hearing and at the trial. If a witness changes his or her testimony, the DA can whip out the transcript of the Grand Jury and impeach their testimony. It’s also a great way to grab up a bunch of suspects, get them under oath, and force them to testify so you can figure out who to charge for the main crime and who to charge with conspiracy.  (Note:  Defense lawyers are allowed to attend but can only advise their clients not to speak; we can’t object to questions or cross-examine.)

The rules here in Pennsylvania allow DAs to hold onto those transcripts of the preliminary hearing and not show the defense attorneys until the actual literal last minute. Seriously. I had a trial a while ago that lasted three weeks and after one of my witnesses took the stand, then the DA had to give me a copy of the transcript from the Grand Jury that he was going to use to impeach her during his cross-examination. The trial stopped for an hour while I and the other defense counsel rushed through reading it so we could “prepare.” No wonder DAs like that!

Grand Juries are a waste of taxpayer time and money, harking back to old English common law, predating the Constitution and the rights we usually take for granted (such as open hearings and the right to cross-examine).

Here’s what you need to remember: A Grand Jury is not an adversarial proceeding. It’s a government activity, run completely by the government. And in too many cases involving police abuses, the government investigated the government and decided that the government did nothing wrong.

And that should make everyone mad, liberal or conservative.

*Much of today’s post is copied from previous posts about Grand Juries, so forgive me for that