By Dr. Mom
Clash Daily Contributor
The current public discussion of the deficiencies of the Grand Jury system would be funny, if the ignorance it makes evident wasn’t so sad.
Start with Al Sharpton (as so many discussions of ignorance do). Following the Ferguson grand jury’s finding of no bill of indictment against Officer Wilson, Sharpton–whose knowledge of law extends as far as being sued for making up the Tawana Brawley hoax and as wide as being way behind on his taxes—said this: “You may have won this round, Mr. Prosecutor…”
Stop. Just stop right there.
The goal of the prosecutor before the grand jury, the entire reason he is there, the expectation of his bosses, and the deepest desire of his heart is to get an indictment. The prosecutor did not “win.” The target of the investigation—Officer Wilson—“won.” That is, if you can call it a “win” when a man loses his reputation, his ability to move freely in public, and his job, and gains the enmity of hundreds of thousands of people he has never met.
Our schools must not teach the criminal justice system in America anymore, because despite the surfeit of police procedural shows, apparently the only thing any citizen or “expert” in America knows about a grand jury is that it could “indict a ham sandwich.” Somehow, the general public seems to have missed the point of the grand jury entirely, and the nattering nitwits on television aren’t helping. Because two grand juries came to the “wrong” conclusions, self-anointed “civil rights leaders” want to reassess this bulwark against injustice and hysteria.
The grand jury exists to lessen the possibility that political corruption and public pressure will derail the process of justice. A grand jury is the most democratic form of the justice system, in that it is made up of citizens, who have the power to both investigate and indict. The grand jurors are empowered to ask any question, to call any witness, to take their investigation in any direction. They are not required to hear from the defense. The prosecutor makes his case, and the jurors decide whether there is probable cause to proceed to trial.
The complaints about this system prior to our national convulsion of the past two weeks have been that the case presented by the prosecution is allowed to be too one-sided, that probable cause is a very low bar, particularly when those who have to find it aren’t experts in the law. The mere fact of accusation may be enough to persuade the grand jury that a trial may be warranted, unless there is no evidence at all. In other words, the usual complaint is that the grand jury is too willing to indict.
This has become concerning because one of the purposes of the grand jury is to prevent defendants from being pushed into trials based only on the drive of a prosecutor to persecute, or a judge’s bias against them. It is a stopgap against both the corrupt public official and the hot-blooded mob. The grand jury proceedings are secret to ensure a full hearing of evidence, to encourage whistle-blowers, and to preserve the confidentiality of information that may never be needed in a trial court. The currently-screeching media would do well to recall that the colonial governor of New York wanted a grand jury to indict John Peter Zenger in 1735 for libel for making fun of him in print. They refused, preserving Zenger as a hero of free press for all time.
Consider the alternative.
Assume the justice system is biased against certain defendants—specifically those who are black. Without a screening mechanism, this racist system needs only the collusion of a white racist judge and a white racist prosecutor to put a black defendant on trial for a capital crime. People like Sharpton and Holder already claim that the trial system is riddled with errors, that black men are sitting on death row because they were poor and couldn’t afford a lawyer to “beat the system.” That “system” would grind a whole lot finer without the grand jury there to stop a politically corrupt prosecutor from taking a case to trial without vetted evidence.
Not all states use the grand jury system. However, the grand jury of the federal system comes to us from no lesser source than the Bill of Rights itself. First established in the great statement of the rights of the individual against the state, the Magna Carta, this process wasn’t brought into being by some Executive-Ordering president, or a power-crazed Supreme Court. The Founders themselves thought enough of the process to put it right there in the Fifth Amendment. Before it protects you against double jeopardy or self-incrimination, the Fifth Amendment says you can’t be pursued federally without the consent of a group of your fellow citizens:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….”
Without a federal grand jury system, a federal prosecutor could go after his enemies with the evidentiary equivalent of a pen and a phone.
Just think that through.
And remember it when Obama and Holder start a “national conversation” about “reforming” the grand jury system.
Dr. Mom is a married mother of three boys and the author of Souls, Bodies, Spirits: The Drive to Abolish Abortion Since 1973. The hills she chooses to die on are the Bible and the Constitution, in that order. In addition to her American Studies doctorate, she also holds a Master’s degree in Forensic Psychology and is, therefore, perfectly equipped to interpret the current Administration. She also tweets as DrKC4.