What Is A Grand Jury For, Anyway?

Media comments, in the wake of the failure of grand juries in Missouri and New York to indict police officers in the deaths of black suspects, displayed  an abysmal ignorance of the role of grand juries in the American legal system.

Some people ask why there weren’t trials which were open to the public, confusing a twelve member trial panel with an often larger grand jury composed of up to twenty-three people.

Others wanted to know why the prosecutors guiding the grand juries didn’t act as advocates for those killed against the subject policemen.

 

And there were those who didn’t see the point of having the case considered by a grand jury, at all.  Why not just have trials on murder charges against the cops and let the witnesses and other evidence be heard?

The “Grand Jury” in both America and England (where it began), has historically been both an investigative body and a bulwark against prosecutorial abuse.

 

It is the latter function which is usually challenged.  The role of the grand jury, in that respect, is to place a barrier between the government and the individual which must be cleared before the accused can be tried for the alleged crime.  That barrier – or standard that must be met – is “probable cause” (is it more likely than not that the person committed the crime?).  But, in reality, the state is unlikely to push for an indictment (a finding of probable cause) unless it believes that there’s a high probability that a trial jury will find that the evidence meets the much higher standard of “proof beyond reasonable doubt” that is required to convict.  In other words, a prosecutor won’t seek an indictment if he doesn’t think that he can win at trial.  Not only would a loss mean that the case was a waste of time and resources, it would also mean, selfishly, but almost always true, that the prosecutor’s reputation is harmed.  No one, particularly trial lawyers, likes to lose.

 

Critics assert that the institution has outlived its usefulness, citing the fact that, in the vast majority of cases presented to grand juries by prosecutors, the issuance of an indictment is seemingly automatic.  That’s hardly surprising considering that, in the vast majority of criminal cases, the charges do not involve disputed facts and the presence of probable cause is obvious.

So when a prosecutor is confronted, like the police shooting of Michael Brown in Ferguson, Missouri, with evidence that is sharply contradictory and public interest is high, it makes sense to defer to the grand jury’s traditional role of investigation and determination of the presence of probable cause.  The shooting of Michael Brown was not a routine case.  The hackneyed phrase among lawyers that a prosecutor can persuade a grand jury “to indict a ham sandwich” was inapplicable.

Grand jury proceedings are secret so as to protect its investigative function  and can insure that some allegations of wrong doing are confidential until a bill of indictment is approved.  [“Probable cause” is present.]

Those who would do away with the historic protection provided by the Grand Jury system simply do not appreciate the terrible burden placed on a defendant in a criminal trial.  The power of the government arrayed against the individual is hard to over-estimate.  The Fifth Amendment to the U.S. Constitution reflects this fact, requiring that federal felony charges must first satisfy a grand jury that they have merit.

It is a given that foes of the Grand Jury system would feel very differently if they found themselves facing hostile scrutiny from the police for alleged criminal behavior.

Cyber War Scorecard -- North Korea 1 – America 0

I’ll admit to being furious when I learned that major American theatre chains caved in to North Korean threats of violence if they displayed a satiric movie depiction of their “dear leader”. 

It’s a cliché that freedom is not free.   There is a cost in defending it.  Sony and the movie chains chose not to pay it.

My anger – shared by a broad swath of the American public, apparently - was based on the belief that surrendering to foreign threats is not what America does.  We are not a people - so I thought – who surrender to intimidation.

I recognize that caution and prudence have proper roles in human affairs, and movie theatre owners didn’t want to risk the safety of themselves and their patrons.  Yet, they could have served their interest by insisting that the government provide security for their establishments.  After all, the threats clearly came from a foreign government.

 

While the ability of North Korea to carry out its threats is highly suspect (the large Korean community in the United States is not known for harboring anti-Americans/fifth columnists), such measures would provide reassurance to theatre goers while displaying a refusal to kowtow to the bluster of a communist dictatorship.

 

The Weekly Standard, a noted conservative magazine, commented in a similar vein and, further, pulled from its archives a very sobering 1978 quote from Aleksander Solzhenitsyn

“A decline in courage may be the most striking feature which an outside observer notices in the west…. Such a decline in courage is particularly noticeable among the ruling groups and the intellectual elite, causing an impression of loss of courage by the entire society.”

What can be done now?  Sony has declined to comment on whether The Interview would be released later. 

Here is a suggestion:  announce a new date with a promised show of strong security being present and promote the date, and the event, as a show of support for American freedom.  To show up will be proclaimed as a patriotic act.  [The fact that the film is vulgar, in parts, and aims for low-brow humor is irrelevant.  Attendance is not desired to serve entertainment in this case.]  The North Koreans have to be made aware that it is a political matter.  And the world needs to be reminded that America’s historic commitment to freedom remains, despite the ambivalent measures of the Obama Administration.

Are Police Anti-Black?

Recent polling makes clear that most blacks believe they are treated unfairly by law enforcement personnel, with recent examples of police-caused deaths of Michael Brown in Ferguson, Missouri, and Eric Garner in New York City being cited as evidence.  The explicit view is that these law breakers would not have been killed if they had been white. 

Is that so?  Was the police focus on skin color or conduct?

There are many in our society who believe that it must be the former since statistics show that blacks are far more likely than whites to be charged with crimes and end up in jail. 

Blacks make up 13% of the U.S. population today yet more than fifty percent of all murder suspects are African-American.  And their arrest rates for other serious crimes, such as armed robbery and aggravated assault, range from 25-40% of all such crimes.  Why are blacks so grossly over-represented in these dismal statistics?

Is it really possible that the disproportionate representation is due to police racism?  All of it?

Or is the truth rather less complicated?  The simple answer may be that blacks do commit more than their share of crime.

Why?

Is it certainly not a matter of genes or other inbred character flaw, as a true racist might claim.

But there are cultural and attitudinal factors more pronounced among blacks than whites.

Over 70% of black births are out of wedlock; 29% is the current number for white illegitimacy.  [Since both statistics are much higher than fifty years ago, the trends are horrible for family stability for Americans, in general.]  Study after study has established that children of single-parent households (almost always headed by a female) do not thrive as well as children who have both parents present.  It seems rather obvious to suggest that there is a connection between illegitimacy rates and criminal behavior.  The absence of the father in the home means there is no positive model for a youth or young man.  He therefore looks for guidance from the streets.

Consider what are undoubtedly related facts:

The high school drop-out rate is about 50% higher for blacks than for     whites.

For those remaining in school, blacks perform significantly less well than whites on tests measuring achievement levels in reading and math.

So how can it be a surprise that a population group with greater negative characteristics – less stable upbringing, bringing with it poor educational performance – produces disproportionate numbers of young people who can’t function effectively in the broader community and become criminals?

It is easy for the race hustlers and the ideologically blind to look “outside” certain black communities for explanations for high crime rates.  It’s always comforting to be able to ascribe blame for one’s problems to someone – or something- other than one’s self.  But that misplaced focus is truly tragic and destructive for it delays – or halts – confronting the real question:   High crime rates will not change until the real cause is addressed – cultural dysfunction.

Alas, for a young black man coming from such a sad and troubled background, the color of his skin is the least of his problems.

“How Can You Be a Criminal Defense Attorney?”

That question invariably arises when a fellow lawyer learns that I am a political conservative.  The unspoken assumption behind the question is that a person who defends those accused of crimes must be in some sense partial to them or, at the very least, suspicious of the police who made one’s client a defendant.  In other words, one who represents those accused of crimes is expected to be leery of law enforcers, maybe not an anarchist but at least a liberal. 

I certainly don’t fall into those categories –at least not easily.

My succinct response to the questioner is that the Bill of Rights provides   protections for those accused of crimes such as a trial by jury and the right to remain silent.  What could be more conservative than protecting a client’s constitutional rights?

There is a broad irony to the question posed by fellow attorneys (most of whom consider themselves proud liberals).  Those on the left do, indeed, tend to be suspicious of the exercise of power by government employees who are in law enforcement, including prosecutors.  They see such personnel often as agents of racial prejudice and injustice (the prejudgment by many on the left of the recent police shooting in Ferguson, Missouri is an example).  

Yet liberals eagerly urge other arms of the government to get involved in curing perceived social ills such as income inequality, environmental hazards and health insurance inefficiencies.

But a conservative does not accept the distinction that those exercising powers of government are to be viewed suspiciously in some aspects but embraced in others.

 

Human nature is a constant in human endeavors.  The fact that a person is a “public servant” who considers himself well-motivated does not grant him an exemption from reality.  The ranks of law enforcement or social service agencies, for instance, all contain people – a mixture of good, bad and indifferent.

Power does indeed corrupt.  That appreciation is at the heart of political conservatism and the U.S. Constitution.

Our Framers sought to restrain the exercise of power, while acknowledging that government is meaningless without it.

The essential role of the criminal defense attorney is to serve as a check on the exercise of governmental power in the criminal justice system.  Require the state to prove the validity of its accusations.  Provide a forum and rules to allow the defendant to challenge them.  That is the job of the defense attorney.  The skilled defender, be he liberal or otherwise, oblivious as he may be to the fact, is playing a very conservative role.  Our society would be much better off – and certainly more conservative – if non-law enforcement sections of our government were subjected to the same degree of scrutiny confronted by those who accuse others of crimes. 

I am proud to be a criminal defense attorney because (not despite the fact)  I am a conservative.