Monday, September 23, 2013

GRAND JURIES AND HAM SANDWICHES

I got an inquiry the other day concerning a case where a police officer ran his police cruiser over a suspect fleeing on foot. The officer was immediately fired, and a grand jury subsequently declined to file charges against  him. You can find the article which discusses the grand jury's action here: http://www.news-journalonline.com/article/20130919/NEWS/130919439/0/search. Warning: the dashcam video is both graphic and disturbing.

The reporter, Frank Fernandez of the Daytona Beach News Journal, asked me to  comment on what in general guides prosecutors to present cases to the grand jury rather than making the charging decision within the office. For editorial reasons, not all of my response was quoted in the paper. The quote was accurate, but it did not expound my full rationale for the position I took. Reporters only have limited space for each article, and they consult multiple "experts." They cannot include everything every "expert" says. (I put expert in quotation marks because I feel the term is over-used. A person who is knowledgeable about a subject is not necessarily an expert on the subject).

Here is the article: http://www.news-journalonline.com/article/20130922/NEWS/130929797?p=1&tc=pg&tc=ar.

Here, then is most of what I wrote:
 
It is fairly standard practice for SAO’s to refer such cases as this to a grand jury. The prosecutor in a case like this is in a damned-if-you-do-damned-if-you-don’t situation. If the prosecutor makes the decision unilaterally, no matter what decision the prosecutor makes, it will be criticized. A no-file decision will be criticized as being motivated by friendship of prosecutors for law enforcement officers. A decision to file is open to the criticism that the prosecutor is trying to gain political advantage by engaging in the prosecution. Sending the case to a grand jury somewhat ameliorates, but does not eliminate, these criticisms.
 
I left out some of my comments because they did not support the point I was making, but were introductory to my second point. Within the comments I made, I did not include a full discussion of the rationale for taking the case to the grand jury. I said taking the case to a grand jury only ameliorated the possible criticism rather than eliminating it. I made this statement because there is a standard criticism of grand juries: The standard criticism of grand juries is that a prosecutor can manipulate a grand jury into doing anything the prosecutor wants. This is true.
 
If a prosecutor uses the grand jury in this way, I believe the prosecutor is misusing the grand jury. Just as anyone who owns a firearm can misuse it to commit murder, any prosecutor can manipulate the evidence to get a grand jury to do what the prosecutor wants. This is summed up in the old saw attributed to the Hon. Saul Wachtler, a former judge on the New York Court of Appeals. Wachtler supposedly said that a "good" prosecutor can get a grand jury to indict a ham sandwich. To which I make the reply: A prosecutor who would do that is not a good prosecutor. In fact a prosecutor who would do that is dumber than a ham sandwich.
 
The vast majority of firearm owners never commit murder. The vast majority of prosecutors never ask a grand jury to indict a ham sandwich. The standard objection to taking cases to a grand jury, although colorfully stated, weighs should be accorded little weight.
 
I gave another reason for taking the case to a grand jury, and I think it is a powerful reason:
 
Simple negligence will not support a conviction for vehicular homicide. I can see where a prosecutor evaluating this case would come to the conclusion that you might have difficulty convincing a jury that this is more than simple negligence.  When the case is iffy, a grand jury can provide a very good barometer of what a petit jury will probably do. If the grand jury decides to no bill the case, that means you have no chance of getting a verdict of guilty before a petit jury. If the grand jury indicts, that means you have a shot at getting a conviction. I’ve taken many iffy cases to grand juries for just this reason, to better evaluate my chances of getting a conviction at trial. Taking the case to a coroner’s inquest isn’t going to accomplish this second purpose. In Florida the county judge is the coroner, and there is no coroner’s jury. The county judge decides, and you still have no feel for what a petit jury will do with the case.
 
A grand jury is a jury. A petit jury is a jury. A grand jury is probably going to think like a petit jury. A lawyer is not a juror and doesn't think like a juror. A grand jury will have better sense about what a petit jury will do than a lawyer. It makes sense for prosecutors, who are lawyers, to appeal to grand juries for help in sorting out whether a case should be filed. I have tremendous faith in the wisdom of grand juries. They have saved me from making terrible mistakes in filing, and they have caused me to prosecute case I would otherwise have no-filed.
 
I was also asked whether it wouldn't be better to take the case to a coroner's inquest. We don't have coroner's juries in Florida. Coupling this fact with the above argument for taking iffy cases to grand juries, you can immediately see one reason not to take the case to a coroner's inquest: The coroner is a judge. A judge is a lawyer. Lawyers are not as good as grand juries in predicting what a petit jury will do.
 
There are other reasons which I gave the reporter:
 
The only reason to take the case to a coroner’s inquest is to have the judge rubberstamp a previously made decision to no-file the case. You don’t think the case is worth filing, and you want the evidence out there for people to see so that they will agree with your decision to no file. I’ve taken a couple of cases to coroner’s inquests for this reason. Sometimes it works well, but sometimes it blows up in your face. Following the dictum “if it bleeds, it leads,” news outlets tend to report the salacious details from a coroner’s inquest, ignoring the more mundane evidence. If the salacious details work in favor of a no-file, there’s no problem, but if they work in favor of filing you can wind up causing more problems than you solve. Based on prior bad experiences with such inquests, I would not take a case to a coroner’s inquest unless the salacious details militated in favor of a no-file. In my experience, judges get very upset about being asked to hold a coroner’s inquest. They think that the prosecutor has decided to no-file the case and wants to shift the blame for the no-file to the judge.
 
Here are a couple of examples. I considered these cases no-brainers as far as the decision to no-file, but I also considered them cases which could result in an erosion of trust in the criminal justice system if we made the decision unilaterally. In both cases I felt it was better to sidestep the "ham sandwich" argument by going to a coroner's inquest. If the case were a no-brainer for filing, no purpose could be served by taking the case to a coroner's inquest. I would have taken both of these cases to a grand jury if the case were iffy OR if it were a no-brainer for filing. If the cases had not been homicide cases, and they clearly should have been filed, I would have simply filed charges.

First case: An officer did something stupid and it resulted in an arrestee being accidentally killed. There was a great deal of public sentiment about the case. Some very unreliable witnesses were making statements designed to whip the public into a frenzy of anger. We decided to take the case to a coroner's jury so that the public could see the very clear (but very dull)  scientific evidence indicating the death was accidental. We put on the unreliable witnesses that morning and they made highly inflammatory statements. We thoroughly impeached them, completely nullifying their testimony. The TV cameras were there that morning recording every word that was said. They left after lunch in order to make sure they got the story on the 6:00 PM report. They completely missed the dull, boring scientific evidence we put on that afternoon. What sound bites do you think they ran on TV that night? We had a nightmare aftermath.
 
Second case: Parents, for religious reasons, did not seek medical attention, and a child died. After we disposed of this case, the appellate courts of Florida held that parents should not be prosecuted in such a situation, but that decision was years in the future. Public sentiment ran high for filing. We took the case to a coroner's inquest, and the mother testified. Her tearful testimony, which was widely reported, caused the public sentiment to cool.

In this particular case, it cannot be said that the prosecutor acted inappropriately by taking the case to a grand jury and relying upon their wisdom to determine whether charges should be filed.