Time for Grand Jury Reform

They lost their minds in Austin. They indicted Governor Perry for exercising his legal and constitutional authority in an open and transparent fashion. They claimed he abused his power. Now that is not a criminal issue, that is a political issue taken care of by legislative overrides, court injunctions, elections, or in extreme cases impeachment. When you start to criminalize the political system, you become either third world or Italy. The people who did this need to be indicted for a misuse of the criminal justice system and false charges, better yet Perry should call a special session and the prosecutor should be put on impeachment charges. Perry had no personal benefit and was acting in what he believed was the public interest of not having a drunk who allegedly resisted arrest as head of a prosecutorial unit. I personally think arrest is not a conviction and people should have their day in court so I disagree with Perry’s action even though the incident was on video. That is a policy issue not a judicial issue. I love this quote from New York Magazine which is not a Rick Perry cheer section. The article is entitled “Rick Perry Indictment is Unbelievably Ridiculous”. The danger of this is in the money quote in the passage, “The theory of behind the indictment is flexible enough that almost any kind of political conflict could be defined as a ‘misuse’ of power or ‘coercion’ of one’s opponents”.
But that statute also specifically exempts “an official action taken by the member of the governing body.” The prosecutors claim that, while vetoing the bill may be an official action, threatening a veto is not. Of course the threat of the veto is an integral part of its function. The legislature can hardly negotiate with the governor if he won’t tell them in advance what he plans to veto. This is why, when you say the word “veto,” the next word that springs to mind is “threat.” That’s how vetoes work. The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves. Perry may not be much smarter than a ham sandwich, but he is exactly as guilty as one.
This incident has made me look into the issue of state grand jury reform. Half of the states rarely use them any longer. They have been perverted from independent investigatory bodies into one sided rubber stamps that lack any due process. Only one side of the story is told. The accused may not even know they are investigated let alone see the evidence and challenge it. Evidence collected illegally is allowed. It takes in many states only a majority vote to charge and there is no minority report.  Even worse is that the state is not obligated to present all of the evidence even if it may be exculpatory and show  the defendant’s innocence.   Over the the last three centuries, we lost what the grand jury system was supposed to be. Now it is tool of injustice. Prosecutors have a 98 to 99% success rate in getting indictments. One has to wonder what the 1% of cases must have looked like. We need to have a discussion about making the system fairer and more meaningful. I support 7 simple reforms.  All evidence needs to presented.  Defense counsel should see the evidence after the prosecution rested and be allowed to argue their theory and present exculpatory evidence much like a preliminary hearing.  Witnesses should have a right to counsel unless they have immunity.  Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments, they should have access to the laws and case laws to understand what applies.  There should be a super  majority to get an incitement.   They should be selected by a neutral party not the prosecutor or judge and selected at random from the general public, with perhaps some filtering to remove biased individuals and provide balanced representation, but without “stacking”. For those interested in how the system got so perverted, CATO has a great report.

4 thoughts on “Time for Grand Jury Reform”

  1. May I suggest the following, at least as a minimum or starting point:

    Take what the average person BELIEVES is already true now about grand juries — but is not — and simply make it true.

    That should be relatively uncontroversial.

    For example, most people would think that you get to put on your side of the story. You don’t.

    Most people would think your lawyer gets to cross-examine the witnesses. Not so. So the prosecutor asks misleading, leading, slanted questions but nobody asks the other side of the story.

    (To protect against this in part it should be required that every witness always, 100% of the time be given time to say whatever they think about the topic that wasn’t a question asked.)

    Most people think your lawyer gets to be present during the grand jury proceedings. He doesn’t.

    Most people believe that if the grand jury indicts you that there is strong evidence that you committed a crime. NOT SO. The standard is that there is some evidence that a crime MIGHT have been committed.

    So the grand jury will vote to indict if they think there MIGHT have been a crime committed — NOT if they are convinced that a crime was, in fact, committed.

    Most people will think that if a grand jury indicts but the prosecutor knows he cannot prove the case, the prosecutor won’t proceed. That is the law and sometimes happens. But most prosecutors hide behind the fiction that they MUST prosecute because the grand jury that THEY convened and THEY led around by the nose indicted.

    Most people believe that the grand jury is an independent decision from the prosecutor. In fact ,the prosecutor leads them around by the nose.

    So make it what people think it is. Make sure that the grand jury clearly understands that THEY are in charge. The grand jury elects a foreman. The foreman runs the show. The prosecutor does NOT. Make sure everyone knows that. The foreman can call the prosecutor forward and ask “Whadya got?” But the grand jury decides what witnesses they want to hear from, whether the prosecutor likes it or not. Etc., etc.

  2. It is indeed time for Grand Jury reform and also in Delaware. In many cases, when prosecutors either don’t have evidence, or enough evidence doesn’t exist, to take a person to trial, they simply send the case to a Grand Jury.
    In Delaware, a Grand Jury isn’t concerned with the guilt or innocence of the accused but instead it is mostly political. (recent Bodenweiser case).
    They are more concerned about a great story, instead of considering any possible evidence that a crime actually happened.
    I thought this phenomenon was particular only to Delaware but I guess not. In Delaware there are only INSIDERS and OUTSIDERS and if you aren’t and insider the Grand Jury is merely a tool the establishment can use against you.

  3. What must be understood about a grand jury is what the legal STANDARD is that allows indictment. It is extraordinarily LOW.

    People think “I will never be indicted because I didn’t do anything.” But an indictment is not an evaluation of whether the evidence shows you are guilty.

    An indictment is ONLY a test that there MIGHT have been a crime committed, and based only on a tilted view of the evidence. A grand jury indictment is nothing more than a test that maybe someone should look into it further.

    NOT whether the grand jury believes the person did anything wrong, but there is just enough suggestion of something wrong that the questions shouldn’t be ignored and forgotten.

    If a grand jury indicts someone, everyone assumes they must be guilty. Everyone assumes that the evidence against them must be very strong.

    But when you go back and look at what was the standard, the legal test, that the grand jury applies, that’s not what the grand jury was charged with doing.

    A grand jury is instructed that they should indict if there is just probable cause that a crime MIGHT have been committed.

    Basically the standard that governs a grand jury is not much better than the probable cause of a police officer to pull you over and inquire if you MIGHT have been drinking.

    Yet once a grand jury indicts, it is treated inconsistently and hypocritically. It is treated as just short of a conviction.

    But the grand jury is just doing what they are instructed under the existing rules. The grand jury:

    — Only learns what the prosecutor wants to highlight and doesn’t know anything else about the incidents or the person
    — Has blinders put on the grand jury according to only what the prosecutor wants the grand jury to know
    — Hears witnesses who are not cross-examined. Only the questions that the prosecutor wants asked get asked. Now, grand juries do have the authority to take over and take charge, but they are not generally NOTIIFIED that they can do this and they are led to believe that their role is just to sit there and listen while the prosecutor takes charge. Historically, it was not so. Historically, the grand jury could take over, call any witnesses they want, ask any questions they want, investigate any crimes they want, and totally ignore the prosecutor’s agenda. But we have lost that awareness. Jurors don’t know they have that power, and no one else in the system believes it either.
    — The prosecutor “SPLAINS” the evidence in a tilted, biased away. They don’t hear any alternative explanation or view of the evidence.
    — They almost never hear from the target of the investigation. The prosecutor doesn’t want them to hear the other side of the story.
    — Prosecutors routinely abuse the laws and twist them and stretch them to say things they don’t say, cover things the laws don’t cover. Nothing in the grand jury process ever tests whether the prosecutor’s interpretation of the law is from outer space and completely crazy. There is no part of the process that stops and says “Hold on: Is that what that law really means? Is that what the courts agree by precedent? Or is this just some nutty legal theory by this individual prosecutor?”

    This is why I demanded that Christine O’Donnell’s lawyers Rich Abbott and Cleta Mitchell stop their incompetent approach to the FBI investigation which was more extensive and more active than publicly known. in 2011.

    They wanted to wait for Christine to get indicted, and THEN present the overwhelming, decisive evidence that the allegations are false. That way those lawyers could maximize their legal fees and buy a new BMW or time-share in Jamaica.

    If you don’t tell anyone WHY your client is innocent, you leave them no other choice but to act on the information available to them at the time. If you play “wait and see” you *CAUSE* an indictment by not telling anyone the evidence you have that they need to know.

    I warned that a grand jury WILL indict ANYONE the prosecutor wants indicted.

    I warned that if there is political PROFIT in a prosecutor indicting, there is absolutely NOTHING to prevent it or slow it down.

    I warned that prosecutors normally handle boring, routine cases like minor drug possession, and here is a chance to become famous and popular with the liberal legal profession, get on TV, get their name in the newspaper for months, and get a big, juicy job after it is over.

    So the temptation is to become a liberal hero, famous, and in demand as a lawyer who will be rewarded with top jobs for the rest of his career. The opportunity to indict someone political famous and someone the Left doesn’t like (the legal profession tilts heavily left-wing) is just way too juicy and seductive.

    I warned that it is idiotic to “wait and see” when we are sitting on actual evidence of actual innocence and I can prove that the charges are actually, in fact, false.

    By withholding actual evidence of actual innocence you *CAUSE* the decision of the prosecutor to indict because the prosecutor can only act on the information that the prosecutor has available on the desk in front of him. So the approach would have CAUSED an indictment — and hundreds of thousands of dollars in legal fees, a new BMW, a time share in Jamaica, lots of face time on TV, and large deposits to their 401(k).

    Those lawyers were furious that I upstaged them, leading to them pressuring Christine and Christine then feeling forced to choose, creating a fight.

    But a prosecutor can indict anyone he or she wants.

    So the only variable is DO THEY WANT TO indict someone.

    The only variable over which a person being investigated has influence is whether the prosecutor WANTS to indict you.

    If a prosecutor has a motivation to indict you, you will be indicted and prosecuted.

    And then the pressure and the expense becomes so crushing that most people enter a plea deal.

    So they indict your mother (who worked as a bookkeeper). They indict you on 50 counts. They indict your sister. They indict your Campaign Manager.

    And then they make you an offer you can’t refuse: Plead guilty to just 1 felony, and we will drop all the other 49 charges against you and drop all the charges against your mother and your sister and your campaign manager.

    Is there any limitation on a prosecutor indicting a person on 50 counts? Nope

    Is there any limitation on a prosecutor indicting a person’s family and other people they know? Nope.

    A favorite tactic to squeeze people into a plea deal is to make them watch their mother marched off in handcuffs.

    Is there any limitation on prosecuting people for no reason? Nope. Technically, yes. But those rules are routinely ignored.

  4. Jonathan, that is a very powerfful discussion. I love your insight. If we ever doubted your insight on the grand jury system, those doubts are dispelled. Thank you for bringing your experience to the discussion.

Comments are closed.