Friday, December 5, 2014

The Grand Jury and the Two Darrens

            The grand jury has got a lot of press lately. Two stories have highlighted this very old procedure in our criminal justice system. The first is the national news story about Missouri police officer Darren Wilson.
Officer Wilson shot an unarmed black teenager to death. The death sparked protests and a clampdown by the police that made national news. Pressure mounted to the point where the prosecutor appeared before a grand jury and presented evidence against Wilson. The jury heard hours of testimony and met for several days. It even heard the testimony of Wilson himself.
When the grand jury did not indict the officer protests erupted in more than 150 cities. The town of Ferguson was again set ablaze and the National Guard and the police have clashed in its streets all over again.
            So what exactly is the grand jury? Why do we even have it?
            We inherited the grand jury from England. Back in in 1166, King Henry II issued an order requiring twelve “good and lawful” men from the community to come together and determine if any person in their villages or towns had committed the offense of robbery, murder, theft, arson, or other serious crimes. If they agreed, they would inform the King’s officials and a charge would be brought. From there, the accused would probably stand trial of some kind and would most likely be subject to a terrible demise like hanging or decapitation.
Apparently we live in more enlightened times and the government does not cut people’s heads off anymore. But we still use the grand jury. It became part of English legal landscape and later the colonies. Our founders felt it was important enough to guarantee it in the Bill of Rights.
            Our state constitution has a grand jury guarantee too. Sixteen men and women in the community are empanelled at the start of each year and hear cases presented by the prosecutor’s office. They hear testimony of witnesses, police officers, and whoever the prosecutor wants to present. And then they deliberate in secret to determine if charges should be brought. It happens in every county in the State.
            So much for the history lesson. What’s it do? The grand jury hears evidence presented by the prosecution and determine if there’s probable cause that a crime occurred. The standard is less demanding than proof beyond a reasonable doubt—the level of evidence needed to convict. If the grand jury finds probable cause, it may return an indictment. If not, it will return a no-bill.
The other thing about the grand jury is that it’s all done in secret. The accused does not have the right to attend and certainly is not compelled to testify. The prosecutor almost never presents defenses before the grand jury. That’s what made the grand jury in Missouri so different. Wilson testified and the prosecution presented possible defenses to the shooting. Hence the nationwide disappointment and anger.
            Nor is the grand jury needed for every charge. A grand jury presentation is only required for serious crimes. The US constitution requires it only for “infamous crimes.” Courts over the years have ruled that certain crimes—like murder or sexual assault in the first degree—require an indictment.
            Others don’t. Driving under the influence is not so serious that a prosecutor has to present evidence to a grand jury. Neither is abuse of a family or household member, which is why the other case in the news is so curious.
The other grand jury story is a local one; and it involves another cop named Darren. This Darren—Honolulu Police Department officer Darren Cachola—was caught on camera attacking his girlfriend in a restaurant. The attack looked pretty savage and intense. It was so bad that others intervened.
            The Honolulu prosecutor’s office did not file a complaint alleging the misdemeanor offense of abuse of a family or household member. Instead, it opted to present the case to the grand jury. The grand jury in Honolulu, as with the grand jury in Missouri, returned a no bill. And people were scratching their heads or outraged at the lack of a prosecution.
Perhaps the grand jury system worked in these cases and we’re just not used to it. The grand jury is really supposed to protect the accused from unwarranted or overzealous prosecutions. I guess everyone else from Honolulu to Ferguson felt that these prosecutions were warranted.

            But often times it’s been criticized as a rubber stamp for the government and is known for indicting anyone for about anything. New York Court of Appeals Chief Judge Sol Wachtler famously said that if the prosecutor wanted to, a grand jury could “indict a ham sandwich.” Ironically, the chief was later indicted himself. But that’s another story for another time.

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