At Techdirt, Tim Cushing writes about the egregious case of Justin Carter, the Texas teen indicted for making terroristic threats because of some monumentally stupid and infantile trash-talk on Facebook. The result was beyond belief:
So, the grand jury indicted Carter and the prosecutor asked for $500,000 bail. Carter was jailed in February of 2013 (the first month of which he spent unindicted while officials sorted out jurisdictional issues), where he was beaten, raped, put in solitary for his own protection and placed on suicide watch. He wasn’t released until July when an anonymous donor paid the bail.
During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.
That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.
Tim then asks,
How is that indistinguishable from being found guilty in court? A prosecutor presents only the evidence that will persuade the grand jury to indict and follows it up by asking a judge to set an exorbitant bail. For Carter, he may as well have been found guilty by a jury, for all the difference “it’s only an indictment” made. Since his family couldn’t afford the bail, Carter remained imprisoned, despite not having been found guilty of any crime.
Sol Wachtler’s observation that if a prosecutor wanted it, a grand jury would indict a ham sandwich, has become a cliché. This is unfortunate, as what happened to Justin Carter, what happened before that Mecklenburg County grand jury, reminds us that this is hardly a cute cliché to those whose punishment begins before conviction.
The grand jury was conceived as a bar to prevent the mere accusation by the government to suffice to subject a person to the rigors of prosecution. It presupposed that grand jurors, regular people, your neighbors, would be skeptical of those in power, those leveling accusations, and would demand there be sufficient evidence, real evidence, before putting their neighbors in the dock. Perhaps it was true at the formation of this nation. I wasn’t there so I can’t be sure.
It’s not true now. It hasn’t been true for a long time. And it’s no big secret.
To partially respond to Tim’s rhetorical question, the problem lies not with our stars but with our neighbors. These aren’t a group of professional, hand-selected, badge-licking, law enforcement sycophants. They are our neighbors. They are our friends. They are the guy at the deli and the hardware store, the woman across the street, two doors down, who makes pies. They are us.
Whenever the argument is made for jury nullification, as the Cato Institute promotes with some regularity, I cringe. Such faith in humanity is not merely undeserved, but damn risky business. Those disinclined to blindly embrace law and order think this is the path to showing the government who’s boss. I fear people who don’t realize that they represent a distinct minority point of view, and who cry for change based on the erroneous assumption that change will put their kind in power.
You want the people to take charge? Think how Justin Carter felt as he waited in jail on a half million dollars bail, being beaten, raped and held in solitary confinement. No, the grand jury didn’t know that was how it would turn out as a result of their cursory adoption of the prosecutor’s showing, but they didn’t know it wouldn’t either.
But there is a judge standing between the grand jury and jail rape for a teenage boy. He too goes to the deli, to the hardware store, and he too knows that young men can do foolish things when there is no real threat of crime or harm. Couldn’t he have prevented this insanity from happening?
Well sure, he could have. But he didn’t, and the vast majority of times, he won’t. The judge, your neighbor, like the grand jurors, you neighbors, can’t be sure that this accused defendant won’t go out and do harm.
They share a perspective, where they go with the odds that the cops who testify, the prosecutors who prosecute, wouldn’t be going after a person unless they have a good reason to do so. They won’t buck that determination in the absence of an exceptional showing to the contrary. And that showing rarely happens in the grand jury, or until trial before the court. Until then, it’s mostly words, and shrugged off like the lives of defendants sitting in jails awaiting someone to give a damn about their presumption of innocence.
Does this get us as angry as it got Tim Cushing? You bet it does. The urge to scream is hard to suppress at times, even though we know it will change nothing and persuade no one. Few people outside of the select group of criminal defense lawyers, former defendants and those who know and care about how ugly the inside looks, even when it’s not your world being destroyed, give any of this a second thought.
So do we blame the grand jurors for being enabling cogs in the grinding wheels of the system, rather than the brakes on governmental power they were intended to be? Of course, we do, when they sit in closed session to do their secret work of approving anything a prosecutor puts before them as fast as they can.
But if you know anyone who has sat as a grand juror, they will swear to you that they struggled with every case, gave each allegation deep thought and questioned the facile and untested testimony of each cop who came before them. And then voted to indict.
And if you don’t know anyone who has sat as a grand juror, go meet your neighbors.