Law

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What IS a Grand Jury, anyway?

“A Grand Jury saw all the evidence and made its decision and therefore justice was served.”

I’m seeing that comment a lot today from people who clearly do not understand the difference between a Grand Jury and a jury.  And it clearly is shaping opinions in the wrong way.grand-jury

A jury is selected by a prosecutor and a defense attorney, who question each of them 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 and 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 challenged or removed for possible bias.  A Grand Jury hearing is closed and secret and not open to the public.  The DA presents whatever evidence he or she 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.

I’ve had to defend cases with much less evidence than existed in the Ferguson case. I agree that there was a lot of contradicting testimony but that just means we probably should have a jury hear it all and decide what to believe. Instead, the DA made up his mind and told the jury that we didn’t know so they shouldn’t indict. That’s not how it works!

Seriously, watch the DA’s press conference — he practically admitted that he acted as judge and jury, decided there wasn’t good evidence, and then told the Grand Jury what to do.  Give me a Grand Jury and let me present only the evidence and witnesses I want to without anyone contradicting me and I can get them to go the exact opposite way, I promise you.

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

The real problem once again (I sound like a broken record) is voting. Ferguson is majority black and most of them never vote. Just like how the US is majority Democrat and we don’t vote. And then we get stuck with a government that does not represent the majority of the people. It’s our fault.

 

 

 

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The Military Law Zone

I had court today in the northern part of the county, where for the past two weeks there has been a massive search for Eric Frein, our own home-bred American terrorist. I expected road blocks and car searches, having heard from friends (and lawyers) who have been subjected to them, but there wasn’t much of anything. Police Car Lights I guess the search has narrowed.

The judge and DA wanted to talk about this lawyer in the area who put up ads telling people who had been inconvenienced by the police to contact him so he could bring a big class action lawsuit. We all agreed that this kind of ambulance-chasing was terrible and made all lawyers look bad.

I pointed out though that he had a point. Most of these police stops were done without a warrant of any kind. While searching for this killer, they were asking people to open their trunks, asking for IDs, and even preventing people from getting to their own homes. I haven’t heard of anyone who did not comply (after all, everyone wants the police to get this guy) but what if someone had? What if the police looked into the car and found marijuana or something?

You see the dilemma — the police do not have the right to stop every vehicle absent judicial approval, and only after justifying it with probable cause. The people who were stopped were not suspects in any way.

You can’t look at the severity of the crime investigation to justify ignoring Constitutional requirements. After all, we could really fight crime if we allowed the police to stop every car without cause or search through our homes without reason. Military Law works great in China were there is only a fraction of the crime we have here — but there’s also a fraction of our freedom.

We have to say “no” at the more serious violations before they start using the same tactics for the menial crimes.

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Ferguson solutions

by guest blogger David Gerrold

I haven’t said much about Ferguson because I haven’t taken the time to read all the news accounts. What I have read makes me recoil in horror. It is as if someone has pulled the blanket off the bed and revealed a horrifying mass of skittering cockroaches — Missouri’s institutionalized racism and bigotry are now on display for the entire world to see.

Elsewhere, the news is reporting other shooting deaths of young black men, other unfair incarcerations, other miscarriages of justice — I have to wonder if some of this isn’t a backlash against the first African-American president, but more than that, I have to wonder about the great wealth of skills and abilities and talent that are being wasted, that are being denied to us.

How many George Washington Carvers, Booker T. Washingtons, Harriet Tubmans, Maya Angelous, Neil deGrasse Tysons, Duke Ellingtons, and Martin Luther Kings are we jailing, suppressing, and killing?  ferguson-police

How many opportunities for a cure for some pernicious disease? How many great works of art or literature? How many brilliant performances? How many great scientists? How many incredible educators?

What we are doing to ourselves and our nation is attacking ourselves and a vital part of our own culture. We are punishing our own ability to succeed and thrive. And why? Because we’re still fighting a war that both sides lost over a hundred and fifty years ago. The south lost the war, the north lost the victory, and America is impoverished because we have not yet begun to heal the wounds, instead we just inflict deeper wounds upon ourselves.

Regardless of the circumstances of Michael Brown’s death in Ferguson (and right now, I do not trust anything the police are saying), but regardless of the circumstances, what has been revealed is much deeper than one incident or even a pattern of incidents. What has been revealed is the portrait in our attic, the one that reveals the rot and corruption we have allowed to fester.

There is only one sure and certain way to change any of this. Register and vote.

All that is necessary for the triumph of evil is for good people to click the remote control.

Nebula and Hugo award winning author David Gerrold is the author of over 50 books, several hundred articles and columns, and over a dozen television episodes. TV credits include episodes of Star Trek, Babylon 5, Twilight Zone, Land Of The Lost, Logan’s Run, and many others. Novels include WHEN HARLIE WAS ONE, THE MAN WHO FOLDED HIMSELF, the “War Against the Chtorr” septology, The “Star Wolf” trilogy, The “Dingilliad” young adult trilogy, and more. The autobiographical tale of his son’s adoption, THE MARTIAN CHILD won the Hugo and Nebula awards for Best Novelette of the Year and was the basis for the 2007 movie starring John Cusack, Amanda Peet, and Joan Cusack. His web page is here.

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Conservatives rally in Ferguson against oppressive government

A mass contingent of conservatives who hate the oppressive power of Big Government recently traveled to Ferguson, Missouri to show their support for citizens fighting against Big Brother.

“This is just like our battle with farmer Bundy,” said the leader of one group.  “Or Waco!  Who does the government think they are, shooting at innocent kids like that?  And then bringing in military-style police forces to silence people who are legally protesting.  What is this, Communist China?”  ferguson-missouri-9

“We warned you,” claimed another group.  “We said that sooner or later, we’d have to take up arms against the government that tramples on our rights and ignores the Constitution.  Now is the time for all good citizens to grab their guns and fight!”

Later, the group changed its mind when it discovered that the government was only oppressing and shooting unarmed black people.  “That’s different,” the patriots said, as they went off to look for another millionaire white guy to declare treason with.

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Good cop / bad cop

There are two extremes I see every day when dealing with police.

There are the good cops. I’m happy to say that there are a lot of them. They sincerely want to do a good job, and try their best to make sure all laws and procedures are followed. There are officers I deal with in my job as a defense attorney who I trust completely. They get on the stand and answer truthfully, even when they know full well that their truthful answer may get the case dismissed for some reason. I admire them greatly.

Then there are the bad cops. They see their job as “getting the bad guys” and feel that if they have to break some rules and laws in order to do that, they still win. They never realize that by doing this, they become the bad guys they claim to be fighting.

I partially blame the media for bad cops, because we constantly see movies and TV shows where we cheer on the cop who doesn’t follow rules, acts like a vigilante, and takes the law into his own hands. Batman may be a hero in the films, but in real life, I’d be able to get the Joker out of jail easily given how many rights have been violated. That’s not how we do things in America. The laws apply to everyone, even superheroes.

Most police officers, being human beings, fall somewhere between those two extremes.

We had a great example of this dichotomy over the past few days. The Bad Cops in Ferguson took over. They forgot that their motto “to serve and protect” means to serve and protect us, the citizens. They broke laws and didn’t feel at all remorseful about it. They wore more body armor than the soldiers in Afghanistan and used their military toys to make them feel like the superheroes in the movies — and when you do that, it’s so easy to just assume everyone not like you are the bad guys who must be stopped.

Finally, smarter heads prevailed and the governor placed the State Troopers in charge (after a phone call from the President — I’m sure this is not a coincidence). The State Troopers showed up without any body armor, without any tanks or huge weapons, and stood and watched as the protesters marched peacefully, which is a right guaranteed by the 1st Amendment. And nothing happened. No riots, no injuries, no fights.

If you don’t treat the people as criminals, then they don’t act like them.

Hopefully, this will lead to a strong movement to demilitarize our police forces. After all, this is not the first example of inexperienced officers pretending to be trained SWAT teams hurting innocents. Let’s get our police back into the job of protecting and serving us, and leave the military actions to the military.

Before and after

Before and after

 

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Militarized police vs. rich and poor

Hey, remember when millionaire Clive Bundy basically declared treason against the United States and had a bunch of armed white people pointing their guns at the police?  What a heck of a guy!  A true patriot, claimed Fox News.  Just a guy standing up for his rights;  someone the police would never think to shoot.

But if you’re a poor black kid who is upset because the police shot an unarmed friend of yours for no good reason, and you want to protest, we’ll send in the police after you, with the kind of gear that is usually reserved for trained members of our military.

Yeah, he's a fictional character, but the quote is appropriate.

Yeah, he’s a fictional character, but the quote is appropriate.

Arrest everyone (including innocent reporters) and sort it out afterwards, because, as one cop said, “They’re all animals.” Way to “serve and protect”, officer!

When a rich white kid is abused by the cops, lawsuits pop up. Poor kids don’t always have that alternative, and see no other choice but to riot and protest. It’s sad, but understandable. When you feel helpless, you lash out because that’s the only power you have.

Two days ago, I spoke about how important it is that people do not do that — it does not help your cause. However, that seems so minor in comparison to the abuses we’ve seen from the police. And this isn’t just hyperbole — people record things now, you know. Almost everyone is walking around with a high def camera in their phones, and it only takes seconds to upload those for everyone in the world to see. If you deny that the police are being abusive and overpowering, you’re just denying the obvious evidence.

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Whose benefits?

“Oh, you’re going to Vegas on your vacation?  Well, I’m your boss and gambling is against my religion.  Therefore, you cannot have a vacation this year unless I agree with it.”

“What’s that?  You need a sick day?  Don’t be silly;  I’m a Christian Scientist and I believe in prayer and therefore you have to just pray.  You don’t get a sick day unless I approve it.”

“Hey, what’s that you’re using your salary for?  Did I approve of you buying alcohol?  You know my God doesn’t allow that.  I’m docking your pay that amount.”burns

Many people who cheer the power of your boss to limit what you can use your health care benefits for don’t seem to realize that the benefits are yours.  They are not a gift from an all-benevolent employer.  Your boss has determined that your value as an employee is worth a certain amount:   Your salary plus all your benefits.  Perhaps you negotiated through a union or an employee contract for those benefits.  Perhaps the boss decided he needed to have benefits in order to attract good employees.  Perhaps even the government mandated that the benefits be paid.

The point is this:  those benefits are yours as much as your salary is.  For the Supreme Court to decide that your boss determines what you can use your benefits for is astounding to me.  This is especially true when the decision is about your personal health, which is supposed to be something only you and your doctor should decide.  (This is why the American Medical Association — no great liberal group there — has come out against the Hobby Lobby decision, along with the American Nurses Association, the American Academy of Family Physicians, and the American College of Obstetricians and Gynecologists.)

But then again, should we expect anything more from Republicans (including Republican-appointed judges)?    After all, their policy is to make government so small that it can fit into a uterus.

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Republican-favored background checks found unconstitutional

Republicans greatly favor background checks.  They want to make it harder for people to exercise one of their most basic fundamental Constitutional rights.  However, the courts have once again struck down their attempts in a blow against freedom.

I mean, come on, it’s not like I’m talking about guns here where there should be no restrictions whatsoever as to who can buy one.  Voting requires extreme background checks!  gavel

Republicans decided a while ago that since they have trouble getting a majority of votes in many places, the best thing to do is cheat.  And they’re not even subtle about it, since many have been caught stating very clearly that their goals are to keep Democrats from voting.

Fortunately, the courts — even ones dominated by Republicans — have seen through the charade.  Here in Pennsylvania a few days ago, the Court refused to stay an earlier decision striking down our voting registration law, and Wisconsin and Arkansas had similar decisions in the last few days.

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What is Affirmative Action anyway?

The Supreme Court yesterday decided another affirmative action case, once more holding that discrimination no longer exists.

gavel

When I discuss these things with people, I find that often the whole idea of affirmative action is misunderstood.

Affirmative action began as a way to fix discrimination where it needed to be fixed. Imagine a factory in an area that is 50% minority. If the jobs in the factory required no experience, you’d expect 50% of the employees to be minorities, wouldn’t you? Just based on statistics. Well, of course that wasn’t always the case, especially in the ’60s and 70s when affirmative action began. You’d have these places with 10% minority workers.

So what would happen is that the factory would have to explain themselves. If, for instance, they could show that of the job applications they received, only 10% were from minorities then perhaps that could explain it. But that usually didn’t happen. And so the factory was made to have a policy of accepting minorities to get to where they should have been had there been no discrimination.

Note: this never required you to hire someone who was not qualified. Never. Yet people who scream about “reverse discrimination” always try to give anecdotal examples of where that happened.

Most of the recent cases involve colleges, where there is a different objective. Colleges want to have a diverse student body. They like to get students from all over the country and all over the world, with different religions and beliefs and backgrounds and races. They also look to get people with different experiences and people who were leaders in their community.

It’s how you get a real education. Real education comes from getting lots of different viewpoints and not being in a room where everyone thinks exactly the same. (As an aside, I taught a Constitutional Law class for a semester at Curry College in Massachusetts back in the ’90s — the entire class was full of rich, spoiled white kids and I couldn’t get a good debate going no matter what the issue. It was terrible.)

Lawsuits often come from white kids who got better SAT scores but yet didn’t get in while a minority student whose scores weren’t so good did.

Are SAT scores everything? Do they predict future success? No, and all educators know that. They are an indication, but that’s just one of many factors to consider when accepting students. (Some schools now don’t even consider SATs when accepting students.)

Yet people scream “reverse discrimination” and only look at race when a minority person gets in over a white person. (For all you know, the minority applicant was an Eagle Scout who was High School President, plays a musical instrument, knows three languages, but tests poorly.)

And now we get back to the main point again — qualifications. Even if the minority student is not as qualified as the white student, he or she is still qualified. They’ve met the minimum requirement to get in, and once in, they will have to take the same tests and do as well as every other student or they will fail.

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A thought experiment

Here, let’s see what you think.   bilde

Imagine that instead of a rich, white rancher demanding that he doesn’t have to obey laws or pay taxes while surrounding himself with gun-toting supporters, it was a group of black and latino squatters in an inner-city housing development doing the same thing, guns at the side.

Who here thinks the right wing would be cheering them on as freedom-loving patriots?

Anyone?