Tuesday, November 25, 2014

The perversion of a grand jury process

Years ago I sat on a federal grand jury. Over the course of 12 months, we heard evidence on dozens of cases. At the end, I was totally frustrated by the process and completely understood why former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” We were even told by one of the prosecutors that we could count on never being seated on a trial jury because defense attorney's don't trust someone who has been a member of a grand jury.

When we think of jury duty, we normally envision the kinds we've seen in the news or on TV dramas - complete with a judge who ensures fairness and two opposing lawyers who present their case. What we need to remember about a grand jury is that, first of all, there is no judge present. Secondly, there is no adversarial process. Only the prosecutor gets to present evidence. Witnesses are not even allowed to have their lawyer present.

Under those circumstances, in the dozens of cases I heard, the grand jury never once questioned the prosecutor or failed to provide him/her with the subpoenas or indictments s/he asked for...unanimously. If you'd like to hear how that process affected the Darren Wilson grand jury, watch this video.


No True Bill from Stlfilmmaker on Vimeo.

If your aim was to ensure that Darren Wilson never faced trial on criminal charges (he's very likely to still face civil charges), a grand jury presided over by Robert McCulloch was the perfect venue. The prosecutor's office is making a big deal about the fact that they shared all the evidence with the grand jury (which the lawyers in the video above point out is highly unusual). But that means the members of the jury had to sort through it all on their own - including 4 hours of testimony from  Darren Wilson - with no adversarial process to highlight an opposing position.

Of course people are outraged. This is not a process that produces justice!

1 comment:

  1. There was an episode or two of the Rockford Files where Jim had to face a grand jury. I had heard that the show's creator Stephen Cannell had faced one and used the show for therapy. Very enlightening.

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