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Why do DAs use Grand Juries? (And Why the Ferguson Grand Jury was a Sham)

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.  grandjury

Yet in states that allow Grand Juries and have preliminary hearings, DAs still use them.  Why?  (If you didn’t read yesterday’s blog about what Grand Juries really are, please read that before continuing.)

A District Attorney usually knows whether he or she will bring charges — and, after all, the chance of a Grand Jury not indicting is smaller than the chance of being hit by lightning, so why do they go through the process?

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 last year 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!

That’s why many lawyers (on both sides) know the Grand Jury system is a sham.  It’s a waste of taxpayer time and money, and harks 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).

DAs also use them for political reasons. In the Ferguson case, it was used to shield the DA from a crime he really never wanted to prosecute in the first place.

He held a Grand Jury and acted more like a defense attorney — even calling the defendant cop as a witness so he could tell his side of the story.  Got that?  The DA called the guy he was supposedly going to prosecute and gave him the opportunity to tell his own version of the story, and the defendant willingly did so — not exercising his right to remain silent — because he knew the DA was never going to prosecute him.

“This trial is a travesty. It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham … ”  — Woody Allen, Bananas

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 this case, the government investigated the government and decided that the government did nothing wrong.

And that should make everyone mad, liberal or conservative.

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Editorial cartoon: Southern Justice

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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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Editorial cartoons we’ve missed

My sister-in-law died last week, and that is why I have not updated this blog in so long.  I apologize.  I want to write about that, but every time I start, I get depressed and put it off.  So instead I’m going to just publish a bunch of editorial cartoons that I have not posted over the last ten days or so.

Editorial cartoon: Low Information Nation

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Don’t be proud of being a non-voter

Government sucks but you don’t vote?  You’re part of the problem.

Bill Maher explains it well here, and with jokes.

Editorial cartoon: The broken system

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South Carolina joins the 21st Century; Senator Graham has the vapors

Upon learning that his home state of South Carolina would be forced to allow gays and lesbians to marry, Senator Lindsay Graham waved his hands before his face, said “Goodness gracious me!  I think I have the vapors!” and then fainted.  He suffered minor injuries as he hit his head on the closet in which he resides.  Lindsey-Graham

For the rest of us, it was a day of cheering, as yet another federal court has ruled in favor of equality, leaving just the one that decided that no, the Constitution doesn’t say what every single other federal judge in the entire country has said it says.

The South Carolina Attorney General vowed to appeal to the 4th Circuit Court — the same Circuit Court that has already ruled in favor of gay marriage not too long ago.  In other words, Republicans once again will be using taxpayer money to fight another futile battle against equal rights, because Jeebus. Or something.  (Certainly not the law.)

 

Editorial cartoon: Keeping their promise

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The latest ridiculous conservative outrage

The latest outrage consists of making fun of Obama for wearing silly clothes at a recent summit in China, as you can see from this meme polluting the right-wing blogosphere.

obama china

I suppose I don’t have to point out that every other foreign leader was wearing the same thing, including Vladimir Putin, do I? And that every President before Obama wore similar garb?

Heh! It’s funny because the implication is that facts matter to these people.

What’s even funnier are the comments about the incident, which once more include two completely contradictory themes:

“We hate China! We should not be beholden to them. America needs to assert itself. The President should not bow down to China.”

and

“Hey, look! Obama looks real unhappy dressing in the traditional clothes they make them all wear at these things! And he was chewing gum when he arrived! How dare he not show proper deference to China!”

At least they are consistent in their beliefs.  No matter what Obama does, they hate it.