Monday, June 9, 2008

This Ham Sandwich is GUILTY!

How do I know the Ham Sandwich is guilty? Why, the prosecutor told me so!(1) If you haven't guessed by now, this post is about Grand Juries. Though ultimately, this is about prosecutorial misconduct. Or really, about the use and abuse of prosecutorial power, something I've mentioned before.

What got me thinking about this again was this article about a man who was just indicted by a grand jury in what sounds like rather questionable circumstances. The police raided his home. He apparently fired his gun in self-defense before he knew it was the police (or rather, that's his version, which as far as I can see has considerably more credibility than the police version). If the grand jury system worked as it is supposed to, all of the problems with the police case would have been aired in the grand jury and this guy would likely not have been indicted. Grand juries are supposed to prevent prosecutorial misconduct in charging people where those charges are not supported. Instead, it seems like they are just a speed bump on the way to an indictment, no matter what the actual evidence.

It would be great if grand juries worked as intended and prevented questionable prosecutions. That would be a great way to provide a check on the huge, almost completely unchecked power prosecutors have. Though it will probably never happen. I've heard it said (By Posner, no less) that our justice system is designed to make it really easy to convict people without even giving most of them trials because otherwise, it could not function. He says this approvoingly, by the way. (Posner is a 7th Circuit Federal Appellate Judge). Given that only about 3% of cases go to trial, he is probably right that our system would be overwhelmed if every defendant demanded his constitutional right to a jury trial. But that is no reason to deny justice. Posner sees it as not a problem because he thinks most of them are guilty anyway, so the whole due process thing is more of a formality. I think that sort of thinking is dangerous thinking - it is all well and good when it is someone else who is on trial - I wonder if Posner would feel that way if it was him or a loved one accused. I somehow doubt he ever thinks about it that way.

There are lots of ways to deal with prosecutorial misconduct and to potentially check prosecutorial power. This way interests me mostly because it is a mechanism that is already in place (though currently toothless and ineffective). That makes it a good starting point for reform, even if the odds are long.

(1) - It has previously been said that a prosecutor could get a grand jury to indict a ham sandwich. Which is not much of an exageration.


The Barefoot Bum said...

I don't see this case as a good exemplar of either problems with the Grand Jury process [off topic: I would be very interested if you could post something on the nitty-gritty of how Grand Juries operate, who sits on them, etc.] nor with the idea that most defendants don't go to trial.

As I understand it (with my Law & Order JD) the Grand Jury process is not supposed to determine guilt or innocence, or even evaluate the high-level quality of the prosecution's case. They exist, rather, to ensure that a) some actual circumstances exist to which might be criminal, and b) that the prosecution has some passing resemblance to a case based on factual evidence.

In other words, Grand Juries exist to prevent the police from arbitrarily arresting people and subjecting them to trial on non-existent or obviously fabricated charges.

The fact that no one disputes that Ryan Frederick did indeed shoot and kill a police officer would seem to justify the Grand Jury's indictment. The prosecutor may be entirely full of shit (and a superficial examination of the facts seems to indicate Ebert cries brown tears), but the Grand Jury seems to be doing its job.

I think there are profound problems with the plea-bargain system (IIRC, most Western democracies other than the US have abandoned this practice), but that most people are imprisoned without an actual trial could well be explained simply by the overall competence of the police.

DBB said...

Yes, the standard is lower than for trial - probable cause, I think, is generally the standard. But that is partly my point - that the whole reason for having grand juries was to have a body independent to prosecutors make the final decision as to whether to bring charges. It is interesting to note that had it instead been the man in this case who was shot and killed by the police, even though there would be "cicumstances . . . which might be criminal" and evidence of a "passing resemblance to a case" I doubt the cop would have been charged with anything - prosecutorial discretion. On swat raids like that cops do things routinely that, were they done by non-cops, would result in first-degree murder charges, not just for the shooter, but for every single person involved. While the Reason people complain about these raids, they also complain about the huge double standard in who gets charged with a crime.

If the prosecutor can use "discretion" and decide not to charge because it was a cop who killed, never even taking it to a grand jury, that is not really fair. I'd change the process to not only make it harder to indict, giving the grand jury more discretion, I'd also bring back the classic power, allowing any private citizen to bring a case to a grand jury - then those cops could end up charged regardless of what a prosecutor does.

Since this process interests me, I may write further on it - but I should say that I have no first-hand experience with grand juries - they don't exist in Michigan - here, we just have preliminary examinations and a judge decides if there's enough for a case to go forward.

I had to laugh out loud when you said "overall competence of police" - I think it is more about the fact that most of the crimes prosecuted are committed by poor, uneducated, and often not very smart people who simply aren't very good criminals and so are rather easy to catch. The smart criminals simply evade the police (and perhaps just work on Wall Street). Plus, the whole drug war makes police work easy - you can "prove" someone is due to be locked up for basically life just because you "found" a bag with some plants in it.

I could go on and on about plea bargaining - part of what irks me about it is that many prosecutors overcharge and then "cut a deal" that really gets defendants to plead guilty to charges more serious than would have been proved in court.

The Barefoot Bum said...

I had to laugh out loud when you said "overall competence of police"...

Heh. My point was only that competence is a competing possible explanation, not to argue that the police actually are competent or, more precisely, that the system is not innately biased against poor people (indeed innately biased against the citizenry).

In other words, we can't infer incompetence or bias *just* from the fact that relatively few cases go to trial.

DBB said...

I think it is not so much about competence (the reason so few cases go to trial) but is about the system being designed such that people feel forced into giving up their right to a trial.

I tend to think that police are most competent at saying exactly the right thing at trial to assure convictions (whether it is true or not). I've read enough trial transcripts now in criminal trials that I recognize a similar cadence with all police testimony - particularly where it is about a rapidly changing situation - like for a car chase that turns into a foot chase at night - adrenaline pumping. I know that if I were in such a situation, I'd have trouble recalling particular details - there'd be some doubts. But these police - no doubts. Suspect X is the one who threw the gun on the ground during the high speed chase in the dark (and from the opposite side of the vehicle from the vantage point of the cop). Suspect Y and Z did not. 100% certainty. Absolutely sure. How can they be sure? I suspect the reason they are sure is that the decision was made that suspect X was going to be charged for having the gun, so all of the police need to have their stories straight. Because if they testified honestly - probably half of the cops would say that maybe suspect X threw the gun and half would say that maybe suspect Y threw it, and maybe most would say they have no idea, they could not see in the dark while frantically chasing a car at 90 mph, skidding to a stop, then jumping out of the car and running after them.

Of course, then you introduce reasonable doubt for either X or Y having the gun - can't have that! We want to convict at least one of them! We pick X! Ok, X had it!

Erin said...

most of the crimes prosecuted are committed by poor, uneducated, and often not very smart people who simply aren't very good criminals and so are rather easy to catch. The smart criminals simply evade the police (and perhaps just work on Wall Street)

I just had this exact conversation today while watching War Games and looking up the history of computer hacking on Wikipedia. We were noticing how really smart people who get caught for white-collar crimes like wire fraud or counterfeiting serve minimal sentences and then get to work as "consultants" for the rest of their career and make more money than regular, non-badass-criminal people.

1. Steve Jobs and Steve Wozniak started their career making "blue boxes" to cheat phone companies for long-distance calls.
2. A guy named Kevin Poulsin hacks a radio station's telephone switchboard to only accept calls from his phone, so he wins all kinds of vacations and prizes. Now a freelance journalist and consultant on computer crimes.
3. That Catch Me if You Can guy.
4. A teenaged kid (Ehud Tenebaum) hacks into Pentagon computers running Windows 95 during the height of the Persian Gulf war and steals software. He is now chief technology officer for a computer consulting firm.

(Specific details of #1, #2, and #4 come via It's summertime, and I'm not technically an academic, so I'm not going to mount a full-scale internet research mission to come up with another handful of examples.)

DBB said...

I guess Corporations like to hire their kind of criminals. Corporations, after all, have been accused of stealing using a briefcase and a computer as well. So where are they going to find their employees to do that if they are all locked up?

Not that all corps are bad - but I tend to think again that power corrupts, and so large corporations with a lot of power can't help but be corrupt (and thus need checks and balances).