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.
Tim also refers back to Gideon’s post at A Public Defender decrying the Mecklenburg County, North Carolina, grand jury, from the Charlotte Observer, via Andrew Cohen:
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.
Jury nullification deeply scares me. One we tell the jury it is okay to ignore the law in one instance, it’s hard to draw a principled distinction between that instance and other instances where the individual juror believes the law subverts justice. Sure, advocates have visions of juries failing to convict for minor drug offenses, but the reality is much more likely to be votes to convict “bad guys” even where all the elements aren’t proven because even if he didn’t do this, just look at him, he must have done something. It’s bad enough when things like that happen now, but I see no justification for giving it a legal imprimatur. If prosecutors just thought about the issue for a bit, they would probably line up in support of nullification because they have the perfectly jaded view of where that ends up.
Perhaps, but, I have been told, that’s why the misfits that hang around these back waters get paid the big bucks to appeal some of them guilty verdicts. Directed verdicts are horribly out of fashion you know.
Meanwhile the other way around is the Bauer trump. Unless the Feds are in need of some masturbatory satisfaction.
I wouldn’t hold your breath waiting around for prosecutors to fully embrace nullification as a means to lock up all the bad guys. They aren’t getting the odds to make it pay on the main stage just yet.
Besides, as our esteemed host points out the prosecution is already too busy feeding the grand jury so many ham sandwiches they can hardly keep up with presentation back in the DA’s kitchen. Heck they don’t even have to cut the crust off anymore.
Bring on the venom. I may be one of the few readers here, who favors jury nullification, in some cases, but that’s because I’m just a run-of-the-mill schmuck and not an attorney.
I will give an example where I would vote to acquit. As a person with strong beliefs regarding firearm ownership, I cannot envision convicting someone of possessing an “illegal” firearm in their residence if it was not the subject of the investigation, was not used in a crime and the person charged was not a prohibited possessor.
Hell, I’m just crazy.
No venom, but a longer view of nullification. Not everyone is like you, and far more aren’t.
Why do you put ‘illegal’ in quotes? Possession of a firearm is illegal or it is legal. That has nothing to do with your strongly held views. It’s a matter of law.
As a juror, your job would be to assist in upholding the law. If you were not to have that view, you should voluntarily withdraw.
Not in America.
I’d respectfully beg to disagree. Just because some “politician” deems something “illegal” changes little. There was a time when jurors were given the latitude to deliberate not only on the defendant’s guilt or innocence, but on the merits of the law. Maybe we would incarcerate less people, per capita, in the world if people could decide what should be “truly” illegal.
For several days now I’ve tried my best to ignore this post out of fear of being humiliated and told that because I’m not an attorney I cannot possibly know more than those who are. However, since no attorney has made it a point to come here and posted the truth, and out of the bigger fear of someone stumbling upon this blog and and reading the misinformation here, I’ve decided to set the record straight and post the facts about grand juries and the selection process used in Texas. Unfortunately, you don’t allow links but sometimes it’s important to provide them in order to prove one’s assertions so I have included them in this comment.
To be considered for service on a grand jury in Harris County, you must fill out the grand juror application, have it notarized, and mail it in to the Administrative Office of the District Courts. In order for your application to be taken seriously, you’ll need to list who referred or contacted you regarding grand juror service, this helps weed out those who aren’t “connected” to law enforcement. Cases involving police misconduct are only presented to grand juries that have retired law enforcement serving on them. http://www.justex.net/JustexDocuments/0/Grand%20Jury/2003_GrandJuryApplication_.pdf
The majority of Texas uses the “key man” system to choose grand jurors. Under this method, a district judge appoints three to five people — known as grand jury commissioners — who are then tasked with hand picking no less than 15 and no more than 40 people to serve as the pool of potential grand jury members. These commissioners are almost always retired law enforcement officers or retired prosecutors. And they usually pick a few jurors who have law enforcement officers in their families to be on each panel. They do not send out summons randomly the same as we do to get our petit (criminal court jurors).
Indeed, the way it’s currently done actually breaks state law regarding choosing grand juries because minorities are always under-represented in Harris county. http://www.chron.com/opinion/outlook/article/Grand-jury-system-s-a-bad-joke-on-justice-1776656.php
For those contemplating grand juror service, you should read this first and understand exactly what your powers and responsibilities are: http://www.statutes.legis.state.tx.us/docs/CR/htm/CR.20.htm
Here is a fine article about how grand juries get corrupted. And it is illustrative of what happens here in Harris county: http://www.dentonrc.com/sharedcontent/dws/drc/localnews/stories/DRC_Grand_Jury_1016.2062b02d6.html
First, I have allowed your links because I’ve been pretty tough on you recently, so I’m trying to lighten up. It’s not that you’re a bad guy deserving of “humiliation,” but that you don’t seem to get that this is my soapbox, not yours. You don’t get to use it for your purposes, to “teach” my readers your version of truth and justice. I do. You can teach whatever you like, but not here without my approval because this is my soapbox, not yours.
As to your comment, you kinda did it again.
Why do you suppose no attorney “set the record straight,” leaving it to you to risk humiliation by being forced to correct the “misinformation” here? After all, there are plenty of lawyers from Harris County, Texas, who read SJ. Are they all stupid? Scared? Fools? Are you the only one smart enough, brave enough, bold enough to tell the truth?
Perhaps it will make more sense to you if you consider that you’re writing about Harris County, Texas, not everywhere else in the country. The lawyers are aware of this, and also aware that local details vary from place to place, but the underlying concept remains intact. In other words, you have a singularly myopic view, and because of this, have contorted an accurate post into “misinformation” because it doesn’t comport with what they do in your county.
Now, had you commented that, “In Harris County, the grand jury process is different,” your comment would have been informative and inoffensive. Instead, you make it a problem by denigrating the post as well as the lawyers who have failed to convey the information that you’ve decided MUST BE TOLD!!!
I’m going to take your word for it that they do things differently in Harris County. I don’t know, and I have no reason to doubt you. But perhaps this will help you to understand why your comments are as appreciated as you think they should be, and why you aren’t being treated as well as you think you deserve. You are one of many people who think the comments here are a platform for you to teach others. You aren’t the teacher here.
If you have so much valuable information and feel compelled to teach, then start your own blog and write whatever you want. I don’t dislike you, or think you’re unworthy because you aren’t a lawyer. I so, however, find your pedantic use of my blog offensive. If you want to use my blog, try to remember that you are here as my guest, not because you’re entitled.
Had the post not referenced Justin Carter’s case in Texas I wouldn’t have felt compelled to comment as I realize that outside of Texas grand jurors are chosen by a different method which does include your “neighbors”. It simply isn’t that way in most Texas counties yet most believe it is, and it is the dissemination of this that has allowed the farce to continue for so long.
I apologize if you see my comments as trying to hijack your blog, it’s certainly not my intention and is probably due to my lack of writing skills which may make it appear that way. I promise to work on it…
It’s fine that you wanted to make sure the information was correct, though they are still your neighbors, regardless of how they are chosen.
And I appreciate your working on it.
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I’ve actually been on a grand jury, and I’m happy to say that there were several instances where we not only didn’t manage to vote for a true bill, we did so unanimously on a couple of the occasions.(one was even a domestic violence charge, and we were nearly half women).
Were some of the folks we indicted innocent? Maybe. Were one or two of the ones we didn’t indict actually guilty? Perhaps.
I will never know.
Then again, McLean County Illinois isn’t a hotbed of prosecution, so our load was not terribly heavy (maybe – MAYBE – we had 20 cases, perhaps 30, one day a week for 8 weeks).
And this is important because?