Saturday, December 27, 2014


When I was a prosecutor it seemed like major crimes never happened between 8:00 am and 5:00 pm Monday through Friday. Anyhow, I seemed to always be getting called out to murder scenes after hours, on weekends, and on holidays. I remember one night I got called out to a stabbing at a local prison and spent the evening meeting with investigators and crime scene personnel, interviewing witnesses, and interrogating the defendant.
It had been a long time since I had interrogated a homicide suspect, so I decided “What the heck, why don’t I do it?” Technically it wasn’t yet a homicide because the victim was not quite dead. They were certain that his wounds were not survivable, so they were treating the case as a homicide investigation. Very few people survive a knife wound that punctures the heart.

We brought the suspect in and sat him down. The officer turned on the tape recorder and advised him of his rights. He said he understood them and was willing to talk. He should have understood them. He had been in prison for over a decade doing life without parole for murder. A check of his records revealed that he would have been a model inmate except for one small character flaw. About every eighteen to twenty four months he would try to kill another inmate. That none of his victims had died was more a testament to their vitality than to his lack of lethality. He didn't like to be "hassled" by other inmates and periodically trying to kill someone encouraged the other inmates to leave him alone. 

The suspect readily confessed. He had taken a shank (a prison-improvised knife) and walked up to the victim while the victim had his hands full lifting a garbage can and started stabbing him. The victim got the lid off the garbage can and used it as a shield or he would have probably died on the spot. When the officers arrived, the suspect dropped his shank and peacefully surrendered. He said that the victim had been threatening him, and he decided to perform what the Vietnam era called a “protective reaction strike,” i.e. kill the victim before the victim had a chance to kill him.

I pointed out that there were other ways to handle threats. Why didn’t he just “check in?” (When an inmate “checks in,” he voluntarily goes into administrative confinement for protection against other inmates.) “No,” he said, “I could never do that.”

“Why not?” I wanted to know.

“Because it’s against my religion.”

“What’s your religion?”

“I’m a Satanist.” That comment was something of a conversation stopper.

It turned out that the victim miraculously survived, the defendant pled guilty as charged to attempted murder and received a sentence of life without parole consecutive to all his other life sentences, and I went on to other cases.

This memory was dredged up by a cause celebre being played out at the Florida Capitol this Christmas. The American Atheists have erected a monument to Satan at the Capitol to compete with a Nativity Scene that had been placed there. The Nativity Scene was taken down, but the Satanic monument remained, and someone vandalized the display. The American Atheists say they are not going to repair the display because the damage demonstrates how bad, nasty, and awful “the religious right” is.

I think the Satanic display is a monument to discourtesy and hypocrisy. I believe this for the following reasons.
(1). The display was set up by atheists.

(2). Atheists don’t believe in the supernatural.

(3). Because atheists don’t believe in the supernatural, they don’t believe in Satan.

(4). The atheists have erected a display “celebrating” something they don’t believe in.

(5). They must have a motive other than the celebration of a nonexistent entity for setting up the display.

(6). The timing of their setting up the “Satanic” display (when a Nativity Scene was erected at the Capitol) strongly suggests that the “Satanic” display’s true purpose was to deride Christianity and Christians.

(7). If proposition 6 is true, then erecting the display was an act of religious intolerance.

(8). If propositions 6 and 7 are true, the American Atheists’ claim that "We've been tolerant of their display. We didn't like it, but we tolerated it," is baloney.

I’m in favor of free speech, but I’m not in favor of discourtesy or boorishness. The “Satanic” display at the Capitol is both discourteous and boorish, and I’m not surprised that some misguided soul tried to take it down. I should, however, be surprised that the representative of such an enlightened organization as the American Atheists would attempt to blame everyone on the “religious right” for the damage to their insulting display. Assigning group guilt for individual actions is very much an unenlightened thing to do.  

Sunday, December 21, 2014


The early Seventies were a rather turbulent time for race relations in America, and my hometown had its share of controversy. My memory is not the best in the world, but as I recall one of the most turbulent times came when three young blacks were prosecuted for the killing of two whites. At some point I represented all three of the defendants in this murder case. I started off defending the two who were initially arrested, and withdrew from the representation of one because I anticipated working out an immunity deal for the other client to testify against the gunman. My remaining client’s brother did not think I was defending her vigorously enough, and hired another lawyer. When the third defendant was arrested, I worked out an immunity deal for him to testify against the gunman. It was all rather straightforward, but local forces within the black community took the case as a cause celebre and organized marches and protests over the prosecution. As I recall, this was the beginning of  a two year period of racial tension in my community.

I was an assistant state attorney when the tension came to a climax. Someone called the Sheriff’s Office with the warning that two deputies would be killed that weekend. This, of course, put all law enforcement on high alert, and there was much discussion of the threat leading into the weekend. Imagine my horror when I received a phone call early Sunday morning (or maybe it was early Monday morning) and the Sheriff’s Office dispatcher told me that two deputies had been killed. I immediately got dressed to go to the jail, but before I left I considered calling dispatch and verifying that two deputies had actually been killed. I vetoed that idea and headed for the jail, which was where dispatch was located, thinking that I could verify the call when I got there. When I got to the jail, I didn’t need to ask whether it was true. All it took was one look at the demeanor of the officers standing on the doorstep.

Thus began one of the worst nights of my legal career. I considered the officers who had been killed to be friends, and I had trouble functioning as I sought to do my duty as a prosecutor. I made a lot of mistakes that night, but fortunately I did nothing to compromise the case. It wasn’t long before we got word that a suspect had been arrested, and I left the scene to go to the jail to interview him.
Somehow the investigating officer maneuvered me into the position of being the interrogator when we talked to the defendant. The defendant confessed, and at the ensuing trial the defense attorney accused me of beating the confession out of him. Others who heard the tape recording of the confession criticized me for being too polite to the defendant. My response was "He confessed didn't he? I must have done something right."

There was one small glimmer of a silver lining to the cloud that was this case. The killing had nothing to do with the racial tension in the community. The defendant was a probationer from Orlando who was in our jurisdiction without permission of his probation officer. His biggest concern seemed to be that his probation was going to be violated and he was going to have to serve a five year prison sentence. That was why he shot and killed two deputies, because he didn’t want them to tell his probation officer that he was violating his probation.

The next week the Sheriff’s Office received another anonymous telephone call saying that more deputies were going to be killed, but that call—like the first—was bogus. It was the merest of coincidences that the first call had been made the week before a probation violator decided that killing two police officers was preferable to getting his probation violated. If any good can come out of such a tragedy, you would have to say that the easing of racial tension which followed the killings was good.

I want to point out one fact that might easily be overlooked in this story. The officers who made contact with the defendant arrested him peacefully. I have seen cases where suspects got arrested and carried to jail with black eyes, bloody noses, and split lips. The defendant in this case was completely unmarked. Some folks portray all law enforcement officers as neo-Fascist stormtroopers just looking for an excuse to abuse someone. The arrest made in that long ago case is strong evidence to the contrary.

Fast forward to today, when we seem to be having a recurrence of racial tension, most of which is aimed at law enforcement. Ismaaiyl Brindsley decided to act out on that tension by killing two law enforcement officers. He fled the scene with officers in hot pursuit and eventually killed himself. Note that the officers in pursuit did not avail themselves of the privilege granted them by Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85L.Ed.2d 1 (1985) to “shoot to kill a fleeing felon.” Are New York Police Officers neo-Fascist stormtroopers? I think not. If any miniscule iota of good can come out of such a tragedy as this, perhaps it may be that it contributes in some way to an easing of today’s racial tension.

Friday, December 19, 2014


There has been a great deal of controversy lately over a series of unfortunate incidents involving law enforcement officers and arrestees. The three most discussed cases involve the Michael Brown/Darren Wilson incident, the Eric Garner case, and the John Crawford III case. None of the officers involved in any of those cases has been charged as yet, and this has reinforced a perception of racism in law enforcement. Depending on their worldviews, people will look at these cases and come away with  diametrically opposed conclusions. Regardless of who is right and who is wrong, we have three dead men who could have gone on living had things played out just a little differently.

I don’t want to talk about the wide ranging implications of these events right now. I'll have more to say on that subject in future blogs, but right now I want to talk about the mechanics of living through potentially lethal confrontations between law enforcement officers and citizens. I am certainly no expert on police practices, but during my 32 year career as both prosecutor and public defender I have been involved in the investigation, prosecution, and defense of scores, if not hundreds, of violent confrontations between officers and civilians. So, based on that experience and little else, I am going to voice some opinions which are quite possibly wrong.

Let’s talk to officers. The first thing that you need to realize as an officer is that “criminals” are human beings, many of whom are not much different than you. As a young public defender, I was shocked to learn that the major difference between my clients and my law-abiding friends was that my clients on the whole weren’t quite as intelligent as my friends. Remembering this lesson served me well in my career. Disaster is in the offing if you forget it. I know this from personal experience. Also remember that when you arrest someone you have ruined that person’s day, and you can expect him to let you know in no uncertain terms how upset he is. Words can anger you, but they cannot hurt you. Don’t let preconceptions combine with hurt feelings to produce ill-advised actions.

Second, remember the phenomenon of postural echo. If you come on to someone in an overly aggressive or insulting manner, he is going to echo your behavior. I once knew an officer who seemed to always be in court charging someone with resisting arrest with violence. He had a sharp wit and a sharp tongue, and he used them both on arrestees. They quite often objected to his behavior and the fight was on. I prosecuted several of those cases and never got more than a misdemeanor conviction. The defendants were obviously guilty, but the officer was just as obviously guilty of provoking them, and the juries returned their verdicts accordingly. Remember the Proverb, “A soft answer turns away wrath.”

“But,” you say, “You can’t handle some people any other way.” As a jailhouse philosopher once told me, violence is the universal language, and some people don’t speak any other. I realize that there are those kinds of people out there in the world, and rough handling is the only way to manage them. But if you start out polite, you can always ratchet up your behavior. If you start out aggressively, you can’t very easily ratchet that behavior down, especially after postural echo kicks in and the arrestee has responded in kind. The Institute of Police Technology and Management offers courses in Verbal Judo which teach techniques for using words as a force option. I took a short course in Verbal Judo years ago, and I highly recommend it. If you can’t take the class, read one of George Thompson’s books on the subject.

When you put on that badge, you can have a tendency to think of yourself as the hero of an epic saga of good versus evil, and you want to act the part. You never compromise with evil and you never take a step back. This attitude can get you killed. Sometimes discretion is the better part of valor. A couple of examples:

Back in the days before tasers and pepper spray I was defending a rather young man charged with multiple counts of battery on a law enforcement officer. In this particular case He had gotten into a barfight with his brother and then took on a host of police officers who responded to the call, breaking one of the officer’s arms. I was taking one officer’s deposition in the case, and he described how he was the first officer on the scene. When he arrived, he stopped just inside the door and saw my client, whom he knew from previous encounters, in the process of besting his brother in a brutal fight. The officer took no action. He stood by and watched the fight awaiting the arrival of backup. Why, I wanted to know. Because he knew the defendant and knew him to be a dangerous man who could handle himself quite well in violent situations. The officer knew if he intervened alone, he would most likely get beaten to a pulp. He said that he would not have taken any action until other officers arrived if my client hadn’t started beating up the proprietress of the establishment. When the range of hostilities widened to include beating up on women, the officer went ahead and intervened. He was getting pummeled when other officers arrived to help him subdue the defendant.  

Another officer was sitting in his patrol car in the parking lot of a local bar when he saw my future client walk up to a man leaving the bar and shoot him dead for no apparent reason. My client then made a beeline for the officer’s car and told the officer “If you try to arrest me, I’ll kill you too.” He took no action and my client made good his escape—but not for long. The officer called for backup, got his bullet proof vest out of the trunk of his car, put it on, and went to the defendant’s house where he and several other officers made the arrest. You may be thinking, “What a wimp!” You would be wrong. If he had tried to drop his fish sandwich, get out of the car, and draw his service revolver, the preacher would have been extolling his courage at his funeral. Instead, he exercised some discretion and survived to eventually retire and collect his pension.

Finally, remember that “justifiable homicide” is not always unavoidable homicide or even necessary homicide. Don’t engage in activity which provokes or facilitates the creation of lethal confrontations.

Now let’s talk to potential arrestees. The first thing you need to remember is that officers are fellow human beings who are not much different from you. There are a few jerks in any profession, and law enforcement is no different. True jerks are few and far between, and most of them are equal-opportunity jerks who dish out discourteous behavior without regard for race, religion, sexual preference, or national origin.

There is a simple way to greatly reduce the probability of violent confrontation with an officer—obey the law. If it is obvious that you are doing nothing wrong, most officers will leave you alone. If this doesn’t work, and an officer confronts you, be polite. This may be hard to do, because the officer may very well be speaking to you in a tone of voice which makes your blood boil. If you respond in kind, the situation will escalate. I vividly remember a time from my youth when an officer stopped me and accused me of running over a dog. He couldn’t seem to get it through his head that somebody else had run over the dog. I had almost sold him on the proposition that I was innocent when frustration overcame me and I made some less-than-flattering remarks to him. He called for a cage car to carry me to jail. I immediately adopted a more conciliatory tone and was able to talk him out of arresting me by the time that the cage car arrived.

If he had arrested me, I would have had an excellent lawsuit against him, but I would still have spent the night in jail. If I had continued to display my ability to think up inventive insults, I might even have collected some knots on my head. Moral: If the officer is being a jerk, don’t respond in kind, nobody ever died from hurt feelings. Just content yourself with imagining all the money you are going to win in the lawsuit. That’s a far better prospect than escalating the situation to the point that your survivors win the money in the lawsuit.

Thursday, December 18, 2014


When you grow up on a farm, you learn all sorts of useful and not-so-useful things—like how to trap salamanders, what phase of the moon is best for castration (waning crescent), and what time of the year you shouldn’t eat squirrels (summer). You also “learn” a lot of things that just aren’t so—like how possums reproduce (don't ask), why you sometimes don’t have enough dirt to refill a hole you’ve dug (it's the dark of the moon), and how a velvet ant can kill a cow. The most useful thing I learned living on a farm was how to work.

We didn’t have power tools. If we cut a tree, we did it with axes or a two-man crosscut saw. If we drilled holes, we used a brace-and-bit. Doing carpentry we used hammers, hand saws, and screwdrivers. Dad refused all our pleas to buy power tools, saying we’d just hurt ourselves with them. I validated the wisdom of his decision the summer between my junior and senior years in high school. I was working on a house renovation project for my grandfather (we called him Big Daddy), and he actually let me use a power saw which would have never passed an OSHA inspection—it had no safety guard. I hadn’t been working with the saw more than a couple of days before I stuck my hand into the spinning blade. I've always said that the fact I still have two fully functional hands is evidence that God does intervene in the affairs of men.

Despite that mishap and a few others I got to be a pretty good hammer mechanic. Some things I got very good at. Finish carpentry was not my forte, but if you weren’t too particular about how something looked, I could make it for you. I got a chance to demonstrate my ability as a carpenter one day during my sophomore year in high school.  Big Daddy was building a barn and a pen, and making some gates for the pen. He had hired a professional carpenter to work on the project and recruited me as slave labor.

Our first task was to build two gates for the pen. By that time in my life I had put up several miles of fencing and built over a dozen gates. Building gates was one of the things that I was very good at. I am positive that the carpenter had never built a gate in his life. But according to Big Daddy, I knew nothing and the carpenter was the expert. I began to get impatient as the carpenter figured, refigured, and scratched his head. He laid the boards out one way and then another. He finally settled on a design for the gate and began working on it. I tried to make a few suggestions, but they were ignored. The only job I seemed to be worthy of was to stand by and hand tools to the carpenter. The longer we went, the more frustrated I got. I knew I could finish those gates in no time at all, and I had to stand there and watch this carpenter fumble around pretending to know what he was doing.

Finally we got the first gate built. It took all morning and it was lunchtime when we finished. In the rural South there was really no such thing as lunchtime. We didn't eat lunch. We ate breakfast, dinner, and supper. Big Daddy said he was knocking off for dinner and asked if I wanted to go to dinner with him and the carpenter. I told him to just bring me a sandwich, I’d stay at the barn.
They were gone a half hour to forty five minutes, and by the time they got back, I had finished the second gate. Instead of being pleased, Big Daddy was angry. If I remember correctly, that was my last day helping with the barn.

Monday, November 24, 2014


1. History. The decision to prosecute may not always be a unilateral decision made by the prosecutor. Sometimes the prosecutor must obtain the consent of the grand jury. Sometimes the prosecutor finds it prudent to consult the grand jury even though it is not necessary. The roots of the grand jury go as far back as 997 when Ethelred the Unready, a Saxon king of England, decreed: “Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.”[1] Thus was born the accusatorial body which would evolve into our modern grand jury. Ethelred’s charge to the “twelve elder freemen” was very similar to the oath that a modern grand jury takes, swearing that it “shall not make a presentment against a person because of envy, hatred, or malice, and * * * shall not fail to make a presentment against a person because of love, fear, or reward.”[2]

In 1166 the Norman King Henry II established the Assize of Clarendon, which provided for an accusatory body of twelve men to make sworn complaints of criminal activity.[3] This proto-grand jury appeared before itinerant judges appointed by the king. In a secret meeting, the judges would present the jurors with a list of crimes. The judges would then go down the list crime by crime asking whether or not the jurors knew of any man in their jurisdiction who had committed the crime. The jurors were not precluded from making accusations because they might have been witnesses to the crime, and the judges could question the jurors to determine whether the charges were well‑founded.[4] The grand jury remained a tool of the King until 1681, when the London grand jury considered the complaint of King Charles II against the Earl of Shaftesbury and one Stephen Colledge, political enemies of the King. Charles wanted public proceedings before the grand jury, but the grand jury insisted on meeting in a secret session. The king wanted a quick indictment, but the grand jury refused to indict either man.[5] This twofold defiance of the king’s will (meeting in secret and refusing to indict) established the tradition of grand jury secrecy, and won for the grand jury its fame as a “shield of justice * * * because it is protection of the innocent against unjust prosecution.”[6]

Writing in the late 1760's the English jurist William Blackstone described the operation of the grand jury in this fashion:

As many as appear upon this panel, are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of king Ethelred. * * *

The grand juries are previously instructed in the articles of their enquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king * * * ; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury however ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine, that might be applied to very oppressive purposes. * * *

When the grand jury have heard the evidence, if they think it a groundless accusation * * * , they assert in English, more absolutely, “not a true bill;” and then the party is discharged without farther answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then endorse upon it, “a true bill;” * * * The indictment is then said to be found, and the party stands indicted. But, to find a bill, there must at least twelve of the jury agree.[7]

2. Modern Procedure. Not much has changed in the past 240 years. Grand juries number between 15 and 21.[8] They meet in secret to consider charges against certain types of crimes, and they are assisted in their investigations by the prosecuting attorney for the jurisdiction in which they sit. A vote of at least twelve is required to find an indictment, and a no true bill is not a bar to further prosecution. The prosecutor may present the case to a subsequent grand jury, or if he works in a state which allows prosecution by information, he may file an information charging the defendant with a crime. The Constitution requires the government to prosecute by grand jury indictment on all felony charges, but due process does not require the states to employ a grand jury. Indeed, the Supreme Court long ago held that in state court a prosecution for capital murder need not be by indictment if it were prosecuted “by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross examination of the witnesses produced for the prosecution * * * .”[9]

The grand jury is selected for a limited term, usually six to eighteen months, depending upon the jurisdiction.[10] It sits in secret, with its express purpose being to determine whether probable cause exists for the prosecution of individuals whose cases are referred to them. Some jurisdictions prosecute all felony cases by grand jury indictment. Others require only the most serious of crimes to be prosecuted by grand jury indictment. The local prosecutor acts as advisor to the grand jury,[11] but the grand jury is independent of the prosecutor and may investigate matters on its own initiative.[12] It may even investigate the prosecutor, and grand juries have done so on more than one occasion.[13] Although the grand jury has historically been a local institution, within the last several years some states, including Florida, have created grand juries with statewide jurisdiction.[14]

A typical grand jury proceeding begins with the summoning of a venire of potential jurors, from which the judge will draw at random the specified number of persons required to make up the grand jury. The grand jury is then sworn and given preliminary instructions by the judge.[15] The officers of the grand jury typically include a foreperson, a vice foreperson, and a clerk. The foreperson and vice foreperson should be appointed by the judge,[16] but the judge may defer to the grand jury to elect their own foreperson. After being sworn and instructed, the grand jury retires to secret session, where the prosecutor presents to them whatever cases he deems appropriate. The cases are presented in the form of live testimony by witnesses and the display of properly authenticated tangible evidence, photographs, and recordings. After all evidence is submitted, the prosecutor instructs the grand jury on the law applicable to the specific case, and retires from the grand jury room to allow the grand jury to deliberate upon the matter in secret.[17] When the grand jury has arrived at a conclusion, they summon the prosecutor back into the grand jury room, and the proper documents, either indictments or no true bills, are signed. At the conclusion of the session, the grand jury reconvenes in open court and presents their findings to the judge. If the defendant is in custody, the indictment is published and the grand jury is excused to be reconvened at the call of the court. If the defendant is not in custody, the indictment is sealed and a capias is issued for his arrest. The indictment remains sealed until the defendant is taken into custody. As a rule, only the elected prosecutor or his assistants, the court reporter, and the witness may appear before the grand jury while it is in secret session.[18] Some jurisdictions, including Florida, allow witnesses appearing before the grand jury to have their counsel present while they are questioned, but the attorney is only there as an advisor and cannot interfere in the proceedings.[19] Witnesses have historically been required to keep their testimony secret,[20] but some jurisdictions allow for varying degrees of disclosure of grand jury testimony.[21]

Normally the grand jury is satisfied to confine itself to the consideration of cases presented by the prosecutor, but sometimes the grand jury takes it upon itself to investigate other matters. More infrequently, the grand jury engages in activity of questionable wisdom. There once was an instance where a governor suspended a public official for misconduct despite the fact that the grand jury had no billed the complaint. The grand jurors issued a subpoena commanding the governor to appear before them to explain his actions. He declined. When a grand jury engages in this type of activity, it is referred to as a “runaway grand jury,”[22] and such a grand jury can be a real headache for prosecutors who have to deal with them.

Initially the grand jurors will be somewhat wary of the prosecutor appearing before them, and will tend to question and test the evidence closely. As the prosecutor gains the grand jurors’ trust, they will become more comfortable with her, asking fewer questions of the witnesses and being less critical of the evidence presented. Because grand jury proceedings are informal, and hearsay evidence is admissible,[23] it is easy for the prosecutor to make a sloppy presentation. This tendency must be guarded against vigilantly. Although the rules of evidence may be relaxed, they are not completely abrogated. As the grand jurors begin to trust the prosecutor, they may ask factual questions of him rather than of the witnesses. This must be discouraged. The grand jurors also may sometimes try to deliberate while the prosecutor is instructing them on the law and may even try to enlist him into the deliberation process. This also must be discouraged. The indictment should be a product of the grand jury’s independent deliberation.

3. Inquisitorial Nature of Grand Jury. A grand jury is an inquisitorial proceeding, not an adversarial proceeding. The prosecution should be as satisfied by a no bill as by an indictment. Before the filing of formal charges, there is nothing to advocate for or against. There is only a decision to be made–should the defendant stand trial? At this stage of the proceeding, you are a judge, not an advocate. You as a guardian of the public trust should carefully weigh and evaluate this decision. A no file decision is not a loss. The duty to decline to file improper charges weighs every bit as heavy as the duty to file proper charges. Even in jurisdictions where only first degree murder cases need be prosecuted by indictment, it is desirable to have all homicide cases reviewed by a grand jury. We have not far to look to find the wisdom of this policy. Twenty one citizens picked at random off the street usually have better judgment about whether homicide charges should be filed than do prosecutors. If a grand jury does not want to indict, the prosecutor is wasting his time if by going ahead and informing against the defendant. Such cases seldom result in a conviction at trial. Some may wonder why a grand jury has better judgment than a prosecutor whether charges should be filed. The persuasiveness of a case is ultimately decided, not by lawyers, but by juries. A grand jury is a jury. A prosecutor is not. A grand jury will react to a case much as a petit jury will.

Critics of the grand jury system frequently to chant the mantra that a good prosecutor can talk a grand jury into indicting a ham sandwich. That may be true, but after the ham sandwich is indicted, it must be convicted. Indicting the ham sandwich leads inevitably to a courtroom confrontation in which the ham sandwich is defended by a lawyer. No one, not even a prosecutor, enjoys being embarrassed in public. Anyone with enough brainpower to get through law school should realize that indicting a ham sandwich will inevitably lead to embarrassment. A grand jury no billing a case behind closed doors should be preferable to getting embarrassed in open court with the TV cameras rolling and the newspaper reporters taking copious notes. If the defendant is going to go free, she should go free at the earliest possible moment. In a best case scenario, he’s never arrested. Second best, the case is no billed by the grand jury or no filed by the prosecutor. Worst case, he’s acquitted after a protracted, highly publicized jury trial, his defense costs are taxed to the county, the arresting officer is sued for false arrest, the complaining witness is sued for malicious prosecution, and the prosecutor receives universal criticism for being an incompetent as a prelude to being voted out of office. Is a good prosecutor going to ask a grand jury to indict a ham sandwich? Not a good one. A good prosecutor facilitates the grand jury’s traditional role as a shield for the innocent. A good prosecutor gives the grand jury every scrap of available evidence which tends to negate the guilt of the accused. A good prosecutor tells a grand jury when the evidence does not warrant an indictment and recommends to them that they not indict.

[1] Bennett v. Kalamazoo Circuit Judge,183 Mich. 200, 206, 150 N.W. 141, 144 (1914).

[2] Fla.Stat. § 905.10.

[3] Assize of Clarendon, The Avalon Project. 2007. Yale Law School. 16 March 2007. <>.

[4] Petition of McNair, 324 Pa. 48, 56 n. 1, 187 A. 498, 502 n. 1 (1936).

[5] United States v. Navarro-Vargas, 408 F.3d 1184, 1190-1191 (9th Cir. en banc, 2005).

[6] The Supreme Court Committee on Standard Jury Instructions, Florida Grand Jury

Handbook (2005).

[7] 4 Blackstone’s Commentaries on the Laws of England, *299-*301,The Avalon Project.

2007. Yale Law School. 16 March 2007. <>.

[8] Fla.Stat. § 905.01(1).

[9] Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122 (1884).

[10] Fla.Stat. § 905.01(3).

[11] Fla.Stat. § 905.19.

[12] E.g. Idaho Code § 19-1108.

[13] Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200, 150 N.W. 141 (1914); ex parte

Jones County Grand Jury, 705 So.2d 1308 (Miss. 1997).

[14] Fla.Stat. § 905.33.

[15] Fla.Stat. §§ 905.10, 905.11.

[16] Fla.Stat. §§ 905.08.

[17] Fla.Stat. § 905.19.

[18] Fla.Stat. § 905.17(1).

[19] Fla.Stat. § 905.17(2); Neb.Rev.Stat. § 29-1411(2); Wisconsin Stat.Ann. 968.45(1).

[20] Fla.Stat. § 905.27.

[21] E.g. Alaska R.Crim.P. 6(l) (No obligation of secrecy imposed upon witnesses); Miss.Code 1972, § 13-7-25 (Defendant has right to transcript of recorded grand jury testimony); N.H. State Sup.Ct.R. 52(6) (Testimony may be disclosed on a showing of “particularized need”); North Dakota Century Code 29-10.1-30 subd. 4(Witnesses may not disclose their testimony until indictment filed and accused in custody); Rhode Island Gen. Laws 1956, § 12-11.1-5.1 (Witnesses free to disclose their testimony); West’s Rev.Code Wash.Ann. § 10.27.090(5) (Testimony may be disclosed to the witness upon proper application, and to the defendant upon a showing of good cause to prevent injustice).

[22] Tyler v. Polsky, 57 A.D.2d 422, 424, 395 N.Y.S.2d 21, 23 (Sup.Ct.App.Div., New York 1977).

[23] E.g. Ala.R.Evid. 1101(b)(2); Oregon Rev.Stat. 132.320 (some forms of hearsay but not others); State v. O’Daniel, 62 Hawaii 518, 523 n.3, 616 P.2d 1383, 1388 (1980) (hearsay admissible, but discouraged).