Full disclosure: I am not an attorney. I don’t play one on TV. I didn’t sleep at a Holiday Inn Express last night. But I thought given the current state of affairs in Kosciusko County, it might not be a bad idea to talk a little bit about grand juries. As I am sure everyone in the county knows by now, our county sheriff was indicted by a grand jury. There seems to be a bit of confusion about what that actually means. So let’s start out with what it doesn’t mean. Being indicted by a grand jury doesn’t mean you’re guilty of anything. It only means you’ve been accused of something. There seems to be some confusion about that, judging by what I’ve seen here and there on the almighty social media – the place to go for those who think they’re in the know. You know, the guilty until proven innocent crowd. Anyway, thanks to theindianalawyer.com for the following primer on grand juries. Laws vary from state to state, but in Indiana there is no specific purpose stated for grand juries in the Indiana Code. Basically, they’re used to decide if there is probable cause to believe a crime occurred. The standard for probable cause is pretty thin, defined as reasonable suspicion. This falls far short of the “beyond reasonable doubt” standard for a guilty verdict. In Indiana, prosecutors can bring charges by “indictment” or “information.” An information has to have the same type of components as an indictment, but only has to be signed by the prosecutor or a deputy and sent to the appropriate court for adjudication. To seek an indictment, the prosecutor impanels six grand jurors to hear the evidence. The jurors recommend if charges should be filed. Whether you are the target of an information or an indictment, the result is the same if charges are filed. You have to go to court to have your case adjudicated. You can plead guilty, sign a plea agreement or plead not guilty and go to trial. The work of grand juries is secretive. The first rule is that you can’t talk about them. Anybody who has been present at a grand jury proceeding who discloses evidence, testimony, statements or votes is subject to criminal penalty. Only the grand jurors can be present in the room during deliberations and voting. The prosecutor is the legal adviser for the jurors. He presents the evidence and interprets it as it relates to the law and makes recommendations on whether a grand jury should return an indictment. Exculpatory evidence – evidence that points toward the target’s innocence – can be presented but it isn’t required. The U.S. Supreme Court in 1991 delivered an opinion in a case questioning whether a district court could dismiss a valid indictment because the government failed to disclose to the grand jury "substantial exculpatory evidence." Writing for the majority, the late Justice Antonin Scalia wrote: “... the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge … it has always been thought sufficient to hear only the prosecutor’s side.” Indiana doesn’t demand that a prosecutor present “both sides,” but most times the target has the right to testify. The target can have an attorney in the jury room too, but the attorney can't participate in any way unless given permission by both the prosecutor and the grand jury foreman. OK, that’s how it works. The rest is what I think about grand juries. Over 35 years of watching this stuff play out it has become pretty evident to me that prosecutors only call grand juries in high-profile cases. Nationally, you hear about grand juries being called in cases like the one in Ferguson, Mo., where a cop shot an unarmed black teenager. In smaller venues, they’re often called when public officials are involved. Prosecutors say grand juries are useful because six members of the community can be helpful in investigating cases and determining whether criminal charges are appropriate. OK, I’ll take them at their word on that, but let’s think about it for a minute. If you’re a prosecutor, you’re most likely a pretty competent lawyer and you’re surrounded by some pretty competent lawyers who act as your deputies. You also have some pretty able investigators woking in your office. So the cops dump this pile of evidence on your desk, you look it over, and you say to yourself, “Gosh, I just really don’t know if there has been a crime committed here. I think I’ll call in six members of the community who know little or nothing about the legal system and the law and have them help me decide.” I don’t mean any disrespect by this at all. It’s just the way the legal system works. But I think the main reason grand juries are impaneled is to provide political cover for prosecutors. If you’re Joe Blow the factory schmo and you hurt somebody in a DUI crash, the prosecutor will file the charges, period. Faced with the same evidence against someone of significant stature in the community, it might just be time to call a grand jury. Remember, the prosecutor calls all the shots and can present the evidence any way he wants. This is pure speculation on my part, but I would guess it is exceedingly rare for a grand jury to go against a prosecutor’s wishes. If a prosecutor wants an indictment, he’ll get one. If he doesn’t, he won’t. Say there’s a high-profile case against an unpopular person. The prosecutor doesn’t believe he has enough evidence to pursue charges. If he just dismisses the case, he could be crucified in the public. Probably lose the next election. (Think Ferguson, Mo.) Instead, he calls in the grand jury. He convinces them there isn’t enough evidence. No indictment. The grand jury failed to bring charges, not the prosecutor. Of course the converse scenario applies as well. In a high-profile case against a person who has the public’s sympathy, the prosecutor may feel there is compelling evidence. He calls the grand jury and convinces them to indict. The prosecutor didn’t indict this popular person, the grand jury did. I absolutely am not implying that there’s anything wrong with calling a grand jury, that it’s a miscarriage of justice or that it produces unjust outcomes. Don’t misunderstand my cynicism. I just think prosecutors virtually always know whether laws have been broken and could pursue charges on their own. And in the case at hand, I am confident if laws were broken, our local justice system will hold the proper people accountable.
