My response to your comments and questions about the grand jury

Friday, October 4, 2013

Good afternoon:

Dianne Trotter asked a good question about the grand jury and many of you followed up with additional questions and comments

She said,

So grand jury meets and decides there is not enough evidence for a capital murder indictment, can prosecutor then go for 2nd degree murder or manslaughter?

Quick answer: Yes.

Reason: The Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions of a defendant who has been acquitted on a particular charge.

Explanation: A grand jury decides whether there is probable cause (i.e., reasonable grounds) to believe that a particular person committed a particular crime.

If the answer is “yes,” the grand jury “hands down” (i.e., issues) an indictment (i.e., formal accusation) accusing the defendant of committing that crime.

If the answer is “no,” the grand jury “no bills” (i.e., refuses to issue) an indictment.

A refusal to indict a person is not a decision regarding the ultimate merit of the case against a defendant. A grand jury can only consider evidence presented by the prosecution. Since defendants and their lawyers have no right to be present, to cross examine, or to present a defense, a grand jury lacks a proper basis to decide the ultimate question of innocence or guilt. That decision can only be made by a jury after it considers all of the evidence presented by both sides during a trial.

Expressed another way, a decision to charge or not to charge someone is just a screening mechanism to decide whether a suspect should be held to answer. A defendant cannot reasonably claim that such a screening method constitutes a decision on the ultimate merit of the case.

Similarly, a grand jury decision not to charge someone cannot reasonably be construed to be an acquittal and no law prohibits the prosecution from returning to the grand jury at a later time to request an indictment. For example, ongoing investigations may lead to the discovery of new evidence that merits another look by the grand jury.

The purpose of the Double Jeopardy Clause is to prevent the prosecution from retrying a defendant after a jury has considered all of the evidence admitted and acquitted the defendant. The prosecution gets only one chance to prosecute and convict a defendant.

I noticed in the comments to my post yesterday that many of you asked questions regarding the secrecy of grand jury proceedings and the exclusion of the defense.

The grand jury, like the Magna Carta, is a product of the war for power in England during the Middle Ages between the land-owning aristocracy and the king. The struggle to create a grand jury was an effort to transfer the power to decide whom to accuse of committing a crime from the king to the land owners. That struggle was important because most crimes were punishable by death and forfeiture of land to the king. By inserting themselves into the process of deciding whom to prosecute, the land owners hoped to prevent the king from using the criminal law against them for unjust economic gain and political advantage.

In grand jury parlance today, the primary suspect in an investigation is called the “target” of the investigation. An investigation may have multiple targets depending on the nature of the crime(s) being investigated.

Other suspects with less involvement or less evidence of participation in the crime(s) under investigation are called “subjects” of the investigation.

Everyone else is called a witness.

Since the 5th Amendment prohibits compelling a person to testify against himself, targets and subjects of a grand jury investigation cannot be compelled to testify before the grand jury. They are warned to seek counsel before the scheduled date of their appearance at the grand jury.

The standard operating procedure for any lawyer retained or appointed by the court to represent a target or subject of a grand jury investigation is to contact the prosecuting attorney and tell her that the client will exercise the right to remain silent and refuse to answer any questions at the grand jury.

Targets are usually excused from appearing before the grand jury.

Assuming the subject of the investigation is not claiming factual innocence, the lawyer who represents him will generally initiate the let’s-make-a-deal game hoping to obtain an agreement that the client will not be charged in exchange for the client’s agreement to cooperate and testify against the target. The client will normally be indicted and excused from testifying before the grand jury, if no agreement is reached. If an agreement is reached, however, the client normally testifies before the grand jury.

12 Responses to My response to your comments and questions about the grand jury

  1. MichelleO says:

    “One of the mystery’s about this case is why this man is so protected from the criminal justice system? It can’t be because of his racial heritage, he is not pure white, all signs point back to his father and his back ground. Bottom line is, our system is broken, all the way from the bottom to the top, and until we as a nation admit that, nothing will or can be done to start to fix the broken system…”

    AMEN, Professor! Amen!

    • colin black says:

      It wasn’t foggage whom was protected it was his actions an the weap[on he used that were untouchable.

      What was being protected was the use of lethal force against any rethnic minoritie whom could be perceived as risky..

      The right to shoot an murder AA on the premise they could well attack youi an offence is the best defece .
      Shoot first an ask no questions from the dead person.

      But the surviveing assailant will give you tottaly unbiased step by step account of how events unfolded.

      • crazy1946 says:

        colin black,

        “It wasn’t foggage whom was protected it was his actions an the weap[on he used that were untouchable.”

        I disagree, had this been the only instance where he was immune from prosecution and or justice, you would be correct. However his whole history is full of incidents where the normal person would have received severe punishment, yet he did not. Even after the farce of a trial for the murder of Trayvon, he continues to receive immunity from the legal system. I will say again there is something from his fathers time in the employee of the government (CIA?) allowing his family to escape punishment for crimes that would put a normal person in prison… What knowledge does Zimmerman Sr. have of illegal acts of our government that could possibly rise to the level that we are seeing immunity given, crack that mystery and then justice will be served upon his spawn….

  2. crazy1946 says:

    Our entire system of justice, including the grand jury, is subject to the effects of racial bias. How could we except anything less from a government designed and endorsed from the beginning by people who by todays standards would be considered racists? How can we start to fix our broken system when we can’t (as a people) even agree that we have a problem with racial prejudice? How can a justice system that is, by unwritten design biased against minorities, be fixed while the biased majority holds the balance of power?
    Some have suggested that George Zimmerman would have not been charged had the grand jury been consulted, that is correct, he would not have been. The state needed a trial for George Zimmerman to take place for several reasons, first to put out the flames of racial discord that were starting to ignite in Seminole County, and the second and probably the most important reason (in the racists mind) was to absolve him from guilt in the eyes of the justice system. One of the mystery’s about this case is why this man is so protected from the criminal justice system? It can’t be because of his racial heritage, he is not pure white, all signs point back to his father and his back ground. Bottom line is, our system is broken, all the way from the bottom to the top, and until we as a nation admit that, nothing will or can be done to start to fix the broken system…

  3. colin black says:

    This is what I don’t understand about America .

    Grand Jurys areban exceptional idea a rare shining light in lets face it is an abysmal legal system.

    Grand Jurys actually give the right to people common people to implement justice to a certain degree.

    They can decide if a person should move further on through the justice system to answer for alleged crimes they may have been involved in.

    They can also call witnesses surrounding alleged incident/crime an question them under oath on what they know ect.

    So its evidents thease Grand Jurys have quite a lot of sway an there active for 18 months Judges clerks lawers get to see them operate over an extended period a year an halfs a long time.

    Long enough to spot any rouge jurours with an agend raceist jurours couldn’t fly under the radar forinstance within the context of seveing on a Grand Jury fot 18 mnths others would soon out them as thease kind of people just cant help but voice there preduidices an act on them as well.

    Forinstance if every time a Grand Jury conveined there where always one or two whom wanted to move on for further action on AA dedendents or alleged defendants no matter how weak the case .

    You would notice an others would also notice.

    So in essence Grand Jurys are regular Joes involved in Law making decisions just like regular jury involved in vital cases totally virgin untried unknown entintys were stealth can an do sneak on board to derail proseadures an sey guity persons free.

    So why not eliminate the possibility of this ever ocouring with making all Jurys thus.

    Two years they serve there compensated paid a good living wage an it voulantry say retired people doctors nurses ect would be ideal but all sorts like a regular jury pool.

    So you employ your profesinal jurours an like all jobs an especialy vital important jobs there monitored an graded by independent observers.

    A vt camera behind one way mirrors recording all deliberations.

    You start them of on small cases .Shoplifting an progress them up to robberys ect.

    All the time monitoring them seeing wich jurours are fair impartial an listen to the facts an not there predudices or own opinions .

    You get rid of those ones .Or the ones that like to dominate an obsficate an run the show .They also can go.

    You are all intelligent people you get my drift.

    Eventually aftr a few months of progressive stages an more an more serious crimes they participate in.

    You are going to be left with a pool of potential jurours the crème de la crème whom can sit on the huge trials the trunkmom trials the trials that garner nationwide an world wide media attention.

    An not be awed or over whelmed an guaranteed to give fair unbiased verdicts.

    I f your going to rely on mebers of the public to judge people guilt.

    Make them prepared make them trained an compensated an as knowlagable in the law an court proceadures .ITS FAIRER FOR NOT ONLY THE VICTIMS FAMILYS AN LESS LIKELEY TO LET GUILTY BLATANTLY GUILTy DEFENDANTS WALK.

    its also going to be fairer for those innocent people whon get wrongfully convicted to have a knowlagable contented group of there peers sitting in judgement over there freedom

  4. dianetrotter says:

    So target, subject, suspect, person of interest,and a couple of other terms I’ve heard are separate and distinct for protection of that person until further information or evidence is received? and they are all expected to become defendants?

  5. Two sides to a story says:

    So wouldn’ it have been better had Special Prosecutor Angela Core allowed a Grand Jury to give a yay or nay before charging Fogen? It would have at least shut all the people up who still yap that she was out of line for not letting the case go to a grand jury.

    • Dave says:

      It would have given her some cover I suppose. When the grand jury declined to hand down an indictment she could have gone in front of the cameras and said “Golly, I thought we had a enough evidence to charge Mr. Zimmerman but the grand jury ruled otherwise. We tried, but it’s time to move on and not dwell on the past.”

  6. Dave says:

    http://www.detroitnews.com/article/20130918/METRO01/309180112

    A one-person grand jury has been appointed by Wayne County Prosecutor Kym Worthy to investigate “irregularities in a major construction project.

    Are one-person grand juries unique to Michigan? I vaguely recall them being used at least once in the past but never anywhere besides Michigan.

    • I haven’t heard of any one-person grand juries.

      Washington State has a process somewhat similar called a special inquiry proceeding which is conducted by the special inquiry judge. The special inquiry judge is appointed from the group of judges currently serving on the superior court. In a process similar to the grand jury, an assistant attorney general calls witnesses and presents evidence to support a finding of probable cause that the offense(s) listed in the information were committed by the person(s) charged with those offenses.

      Unlike the grand jury, which is run by a member of the grand jury, the special inquiry judge presides over the hearing. A court reporter administers the oath to each witness and records their testimony. The identities of the witnesses and their testimony are secret and the hearings are closed to the public.

      • Dave says:

        One person grand juries seem to be very unusual here. The only one that I dimly remember was, I think, appointed in regard to some major organiized crime investigation, This was decades ago and I can’t recall any of theparticulars.

        • colin black says:

          seems silly whats the point jurys are all about a group of peoples and there opinions.

          You cant have a majority vote on opinions of guilt innocence enough evidence or not if only one persons opinion is regarded.

          You cant have a majority vote with one

          Every jurys a draw or hung or invalid

          In the Kingdom of the blind a one eyed man can rule.

          But in a one person jury room a single jururs as much use as a teet on a bull?

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