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Dead Constitution
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Title: The Secret Darkness of Grand Juries
Source: [None]
URL Source: http://www.counterpunch.org/2014/11 ... cret-darkness-of-grand-juries/
Published: Nov 30, 2014
Author: LAUREN C. REGAN
Post Date: 2014-11-30 04:12:44 by Ada
Keywords: None
Views: 258
Comments: 13

A Broken System

Over the last 17 years I have represented dozens and dozens of clients who were subpoenaed to testify as witnesses at State and Federal Grand Juries regarding government investigations. A grand jury is a secret tribunal where a citizen is forced to answer questions by a prosecutor, often against their will. They are not allowed to have an attorney in the grand jury room to advise them while the questioning takes place. There is no Judge in the grand jury room to oversee the fairness or legitimacy of the proceedings. The prosecutor alone determines what evidence will be provided to the grand jurors, and that alone forms the basis of their deliberations and their determination regarding whether a felony indictment will issue. The prosecutor becomes the grand jurors’ friend: he controls their bathroom breaks, meals, and whether they can return to their work, families, and lives. The prosecutor, a politically elected position, works very closely with police every day and generally exhibits bias toward police as a result of this familiar relationship. The prosecutor holds enormous power over the outcome of a grand jury proceeding.

As a lawyer for a subpoenaed witness, the primary concern is whether our client may incriminate itself by providing testimony to the grand jury. Because the grand jury is this secret process, the answer to this question is almost always yes, there is a possibility that this person could be compelled to testify and give information that might lead to criminal charges against that person. In these cases, the witness is advised that they must assert their Fifth Amendment right to remain silent so there is no chance they will incriminate themselves of a crime. The only way that the prosecutor can overcome the Fifth Amendment right of a person is to impose immunity from any potential prosecution upon the subpoenaed person. If immunity is thrust upon the witness, their Fifth Amendment right is taken away from them and they are forced to testify. But, by providing immunity, the State acknowledges that they are no longer allowed to prosecute the witness for any crime related to the testimony sought.

It is with this background and understanding that I have been very suspicious about the recent grand jury proceedings regarding Darren Wilson, the police officer who murdered 18-year-old Michael Brown in Ferguson, Missouri. If a person was being investigated for murder, would they (in their right mind) voluntarily waive their Fifth Amendment rights and testify to a grand jury without immunity or some other type of agreement with the State that would assure the suspect officer that their testimony would not be used to prosecute them for one of the most serious felony crimes that exists in this country? If such a deal was not struck in the secrecy of the grand jury process, one would expect that the powerful police union or Wilson’s own lawyers would have asserted his Fifth Amendment right. Because the prosecutor totally controls the questions asked and evidence provided to the grand jury, it was not surprising that as always, the State guaranteed the result they wanted—the police officer would get away with murder again.

Sure, the State felt compelled to hold a grand jury investigation given the public outrage and attention this police murder garnered around the world. And sure, inviting Darren Wilson to give a speech to the grand jury proclaiming his innocence and victimization gave some semblance that the State was undertaking a “real” investigation into the murder. Lauding the service of the grand jurors is a nice distraction as well, but of course it is not the jurors’ fault that the grand jury system is broken. If the jurors are only allowed to touch the trunk and tail in total darkness, it might be hard to see the elephant in the room

And so, another cop killing never even sees the light of a court room, but instead lurks in the secret darkness of the biased grand jury room.

This scenario has played out too many times in the United States. Marginalized human (whether black, mentally ill, poor, etc.) is shot and killed by a law enforcement officer sworn to uphold the law and protect community safety. The Community reacts with horror, fear and anger at the murder of a victim they know or can relate to. The State provides some window dressing as if they were truly interested in whether this person—one of the few that has the lawful power to kill people under extreme circumstances—acted in conformance with the law. Despite the growing number of cop killings that occur in this country, it is suspect that the State’s conclusion is overwhelming in favor of exonerating the actions of the police officer and affirming the right of the officer to punish a person with death. The community responds in outrage. Protests and direct action have become the only way people can vent the rage and resentment against a broken system of injustice. This public outrage then becomes further justification for increased State repression upon these communities—militarized police, National Guard troops, and the jailing of community leaders. The community often becomes torn and divided between those who cannot remain contrite in the face of such injustice, those who remain obedient to the tenants of Ghandian civil disobedience, and those whose privilege allows them to simply bury their heads in the sand.

Another young black man is dead. Another cop killer remains employed to protect and serve the community he has destroyed. A broken system is perpetuated without discussion about what might replace it. Instead of just replaying this same devastating tragedy, perhaps ‘we the people’ should be coming up with a societal solution that could earn the respect of the people.

Lauren Regan is the founder and executive director of the Civil Liberties Defense Center (CLDC). Ms. Regan operates a public interest law firm, The Justice Law Group, specializing in constitutional law, civil rights, and criminal defense. She is a founding board member and past president of the Cascadia Wildlands. She also serves as a Lane County Teen Court judge, Oregon State Bar Leadership Fellow, National Lawyers Guild, Eugene co-chair, and volunteers hundreds of hours a year to various progressive causes.

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#1. To: Ada (#0)

And sure, inviting Darren Wilson to give a speech to the grand jury

I suspect the author knows the correct word is not speech, she being a lawyer and all.

Many of us find our injustice is broken for the reason that there are too many lawyers involved. The laws come down from government, populated by 90 per cent lawyers.

Is that not amazing?

Cynicom  posted on  2014-11-30   4:27:10 ET  Reply   Trace   Private Reply  

A grand jury is a secret tribunal where a citizen is forced to answer questions by a prosecutor, often against their will. They are not allowed to have an attorney in the grand jury room to advise them while the questioning takes place. There is no Judge in the grand jury room to oversee the fairness or legitimacy of the proceedings. The prosecutor alone determines what evidence will be provided to the grand jurors, and that alone forms the basis of their deliberations and their determination regarding whether a felony indictment will issue. The prosecutor becomes the grand jurors’ friend: he controls their bathroom breaks, meals, and whether they can return to their work, families, and lives. The prosecutor, a politically elected position, works very closely with police every day and generally exhibits bias toward police as a result of this familiar relationship.

From Post #5 of 4um Title: Liberals Willing To Fight To The Last Drop Of Black Blood

The grand jury, made up of nine whites and three blacks, met over the course of three months...

If that info is correct, that Grand Jury was 11 short of the typical number of 23 historically required for all decisions to be made by at least twelve grand jurors, which would then constitute the minimum number for a majority. The Wilson Grand Jury info above might only be noting the numbers of Whites and Blacks but if there were only 12 Grand Jurors, there would be no room for a tiebreaking vote and that would be anomalously odd, imo.

Edit to add from the reference below: Unlike a petit jury, which resolves a particular civil or criminal [case], a grand jury (typically having twenty-three or more members) serves as a group for a sustained period of time in all or many of the cases that come up in the jurisdiction,

Grand juries in the United States - Wikipedia excerpts

The Fifth Amendment to the United States Constitution provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . ."[11]

Unlike a petit jury, which resolves a particular civil or criminal [case], a grand jury (typically having twenty-three or more members) serves as a group for a sustained period of time in all or many of the cases that come up in the jurisdiction, generally under the supervision of a federal U.S. attorney, a county district attorney, or a state attorney-general and hears evidence ex parte (i.e. without suspect or person of interest involvement in the proceedings).

While all states in the U.S. currently have provisions for grand juries,[1] only half of the states actually employ them[2] and twenty-two require their use, to varying extents.[3] The modern trend is to use an adversarial preliminary hearing before a trial court judge, rather than grand jury, in the screening role of determining whether there is evidence establishing probable cause that a defendant committed a serious felony before that defendant is required to go to trial and risk a conviction on those charges.

California, Florida,[4] and some other states,[5][6][7] also use so called civil grand juries, investigating grand juries, or the equivalent, to oversee and investigate the conduct of government institutions, in addition to dealing with criminal indictments. For example, in Tennessee, according to the office of the Davidson County District Attorney:

"It is also the duty of the Grand Jury to inquire into the condition and management of prisons and other buildings and institutions of the county, inquire into the condition of the country treasury, into any abuse of office by state or local officers, and to report the results of its actions to the court."

In the early decades of the United States grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least twelve of the grand jurors, (e.g., for a twenty-three-person grand jury, twelve people would constitute a bare majority). Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations. In that era most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen. A layman could bring a bill of indictment to the grand jury; if the grand jury found there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, it would return the indictment to the complainant. The grand jury would then appoint the complaining party to exercise the authority of an attorney general, that is, one having a general power of attorney to represent the state in the case.

The federal constitutional right to have federal criminal charges screened by a grand jury is one of just a handful of provisions of the federal Bill of Rights that does not also apply to state and local governments. [My note: Disputed]

Grand jury proceedings are secret. No judge is present; the proceedings are led by a prosecutor;[14] and the defendant has no right to present his case or (in many instances) to be informed of the proceedings at all. While court reporters usually transcribe the proceedings, the records are sealed. The case for such secrecy was unanimously upheld by the Burger Court in Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 US 211 (1979).[15][16] The dissenting opinion was joined by Justices Burger and Stewart but concurred with the Court's opinion as to the importance and rationale of grand jury secrecy. Writing for the Court, Justice Powell found that "if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily"; "witnesses who appeared before the grand jury would be less likely to testify fully and frankly"; and "there also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors".

United States v. Procter & Gamble Co., 356 US 677 (1958), permitted the disclosure of grand jury transcripts under certain restrictions: "a private party seeking to obtain grand jury transcripts must demonstrate that 'without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done'" and must make its requests "with particularity".[15] Further, First Amendment protections generally permit the witnesses summoned by a grand jury to discuss their testimony, although Dennis v. United States, 384 US 855 (1966), found that such public discussion permits release of the transcripts of their actual testimony.[15]

The grand jury can compel a witness to testify. The target of a grand jury investigation has no right to testify or put on a defense before the grand jury. [17][18]

United States law also provides for the formation of special grand juries. While a regular grand jury primarily decides whether to bring charges, a special grand jury is called into existence to investigate whether organized crime is occurring in the community in which it sits. This could include, for instance, organized drug activity or organized corruption in government. As provided in 18 U.S.C. § 3331(a), the U.S. District Court in every judicial district having more than four million inhabitants must impanel a special grand jury when requested by a designated official of the Justice Department.[21]

The most persistent criticism of grand juries is that jurors are not a representative sampling of the community, and are not qualified for jury service, in that they do not possess a satisfactory ability to ask pertinent questions, or sufficient understanding of local government and the concept of due process.[40] Unlike potential jurors in regular trials, grand jurors are not screened for bias or other improper factors. They are rarely read any instruction on the law, as this is not a requirement; their job is only to judge on what the prosecutor produced. The prosecutor drafts the charges and decides which witnesses to call.[2]

Limited constitutional rights[edit]The prosecutor is not obliged to present evidence in favor of those being investigated.[41]

Individuals subject to grand jury proceedings do not have a Sixth Amendment constitutional right to counsel in the grand jury room,[42][43] nor do they have a Sixth Amendment right to confront and cross-examine witnesses. Additionally, individuals in grand jury proceedings can be charged with holding the court in contempt (punishable with incarceration for the remaining term of the grand jury) if they refuse to appear before the jury.[2] Media is not allowed.[44] Furthermore, all evidence is presented by a prosecutor in a cloak of secrecy, as the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury unless ordered to do so in a judicial proceeding.[2]

In 1974 the Supreme Court of the United States held in U.S. v. Calandra that "the exclusionary rule in search-and-seizure cases does not apply to grand jury proceedings because the principal objective of the rule is ‘to deter future unlawful police conduct,’ [. . .] and ‘it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.’" [45] Illegally obtained evidence, therefore, is admissible in grand jury proceedings, and the Fourth Amendment's exclusionary rule does not apply.

According to the American Bar Association (ABA), the grand jury has come under increasing criticism for being a mere "rubber stamp" for the prosecution without adequate procedural safeguards. Critics argue that the grand jury has largely lost its historic role as an independent bulwark protecting citizens from unfounded accusations by the government.[47] Grand juries provide little protection to accused suspects and are much more useful to prosecutors. Grand juries have such broad subpoena power that they can investigate alleged crimes very thoroughly and often assist the prosecutor in his job. Grand juries sometimes compel witnesses to testify without the presence of their attorneys. Evidence uncovered during the grand jury investigation can be used by the prosecutor in a later trial. Grand jurors also often lack the ability and knowledge to judge sophisticated cases and complicated federal laws. This puts them at the mercy of very well trained and experienced federal prosecutors. Grand jurors often hear only the prosecutor's side of the case and are usually persuaded by them. Grand juries almost always indict people on the prosecutor's recommendation.[48] A chief judge of New York State’s highest court, Sol Wachtler, once said that grand juries were so pliable that a prosecutor could get a grand jury to “indict a ham sandwich.”[49] And William J. Campbell, a former federal district judge in Chicago, noted: “[T]oday, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”[50]

Occasionally, grand juries go aggressively beyond the control of the prosecuting attorney. When the grand jury does so the situation is called a "runaway" grand jury. In exercising independence from a prosecutor a grand jury is acting according to its prerogative under common law.[citation needed] Runaway grand juries sometimes happen in government corruption or organized crime cases if the grand jury comes to believe that the prosecutor himself has been improperly influenced. Such cases were common in the 19th century but have become infrequent since the 1930s.[56]

The 1935 Runaway Grand Jury in New York City was investigating gambling and mobster Dutch Schultz when jury members complained in open court that prosecutors were not pursuing obvious leads and hinted that the district attorney was possibly receiving payoffs.

Edited quote section + paragraph 1 and to insert the section below it + bracketed spelling corrections.

-------

"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC

GreyLmist  posted on  2014-12-01   1:17:37 ET  Reply   Trace   Private Reply  

Darren Wilson, the police officer who murdered 18-year-old Michael Brown in Ferguson

This is the kind of language that generated the riots.

Deasy  posted on  2014-12-16   8:26:28 ET  Reply   Trace   Private Reply  

It is with this background and understanding that I have been very suspicious about the recent grand jury proceedings regarding Darren Wilson, the police officer who murdered 18-year-old Michael Brown...

Stop there.

Brown was killed, not murdered.

“The most dangerous man to any government is the man who is able to think things out... without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane, intolerable.” ~ H. L. Mencken

Lod  posted on  2014-12-16   10:03:01 ET  Reply   Trace   Private Reply  

Would you believe that when Darren Wilson stated that Brown looked like a demon before he fired, he'd be quoted all over the internets by hateful liberals?

Deasy  posted on  2014-12-16   10:09:54 ET  Reply   Trace   Private Reply  

He should have said "an ape on steroids."

“The most dangerous man to any government is the man who is able to think things out... without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane, intolerable.” ~ H. L. Mencken

Lod  posted on  2014-12-16   10:35:28 ET  Reply   Trace   Private Reply  

Wilson should have been commended for placing each shot into the assailant and not overshooting the target or hitting a bystander. He's either a very good shot under pressure or else the assailant was mighty close.

Deasy  posted on  2014-12-16   10:57:37 ET  Reply   Trace   Private Reply  

It is with this background and understanding that I have been very suspicious about the recent grand jury proceedings regarding Darren Wilson, the police officer who murdered 18-year-old Michael Brown in Ferguson, Missouri.

To say that Saint Michael was "murdered" gives the impression that he was perfectly innocent and the cop just shot him because he wanted to. The evidence doesn't support that impression.

Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts

"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat

James Deffenbach  posted on  2014-12-16   11:31:58 ET  Reply   Trace   Private Reply  

That is close to the interpretation of events that the press was presenting before the riots. Gullible liberals have been following that version and refuse to budge from it. I'm not happy that Brown had to be taken down, but after fighting for the officer's weapon, cracking his eye socket, and then turning around to charge him, my sympathy and the law is with the police officer.

Maybe if we made cigars available with food stamps this tragic death could have been avoided.

Deasy  posted on  2014-12-16   11:49:17 ET  Reply   Trace   Private Reply  

You know, some people have no discernment whatsoever. They lump in the Brown case with the Eric Garner and Tamir Rice case. Well yeah, they were all black people and all of them died at the hands of the police one way or another. But Saint Mike was not on his way to choir practice when Darren Wilson shot him. The other two, Tamir Rice and Eric Garner should both still be alive today because there is no evidence that either of them did anything they should have been killed for.

Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts

"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat

James Deffenbach  posted on  2014-12-16   12:00:23 ET  Reply   Trace   Private Reply  

Another young black man is dead. Another [cop killer killer cop] remains employed to protect and serve the community he has destroyed. A broken system is perpetuated without discussion about what might replace it.

This is not about "liberals v. conservatives" and it shouldn't be about race. This is a Grand Jury topic that's larger than the Ferguson case and it looks like the direction it's going is that the police should act as judge, jury and executioner to save America money on trials for "the wrong sort of people" aka lumpenproles in Soviet-speak. Chilling, imo.

Edited quote section.

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"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC

GreyLmist  posted on  2014-12-16   13:15:47 ET  Reply   Trace   Private Reply  

Instead of just replaying this same devastating tragedy, perhaps ‘we the people’ should be coming up with a societal solution that could earn the respect of the people.

I saw the lyrics to this song in a post about Putin at rumormillnews.com. Learned at YouTube that it's by a Canadian band, purportedly about anti-semitism. One of the lines harkens to the American national anthem and it was re-recorded on an album titled "Circling Spirit". In that light, it seems more of a resistance-rallying political statement in-general concerning America's abusive Police State dilemmas and such due to Anti-Constitutional NWO-types and their various fringe groups moving against our Republic, so I'm posting this version with two lines of lyrics that I saw included elsewhere:

Red Rider - Lunatic Fringe

Lyrics:

Lunatic Fringe
I know you're out there
You're in hiding
And you hold your meetings
I can hear you coming
We know what you're after
We're wise to you this time
We won't let you kill the laughter

Lunatic Fringe
In the twilight's last gleaming
This is open season
But you won't get too far
'Cause you got to blame someone
For your own confusion
We're all on guard for this time
Against your final solution

We can hear you coming
No you're not going to win this time
We can hear the footsteps
Out along the walkway

Lunatic Fringe
We all know you're out there
Can you feel the resistance?

[...Addendum:]

In these new dark ages
There will still be light

Edited for spacing.

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"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC

GreyLmist  posted on  2014-12-16   15:53:47 ET  Reply   Trace   Private Reply  

A broken system [and] discussion about what might replace it.

Cross-referencing 4um Title: The Opposition to Police Brutality is a Constitutional Militia - The Liberty Brothers Radio Show - full length video interview of Dr. Edwin Vieira, Jr., who should be a Justice of America's Supreme Court, imo. At 1:22:18-1:30:12, he discusses his views on Citizen Grand Juries that have been suggested as one possible solution to the broken judicial system and cautions against that. My view currently is that there's probably some room for historical debate about it concerning America's provisional government acting somewhat in that capacity during Revolutionary Wartime conditions. He goes on in that segment to speak about how Constitutional Militia's could very quickly be an effective solution for Police Brutality and then there's some conversation about a movie called "Midnight Ride" that he's in, along with other liberty-minded people, regarding Martial Law issues. I haven't seen much of it yet but will post info on that in the above linked thread when I can.

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"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC

GreyLmist  posted on  2014-12-16   20:04:17 ET  Reply   Trace   Private Reply  

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