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.