Monday, November 24, 2014

ham sandwich

A grand jury could indict a ham sandwich.

-- Sol Wachtler

You can indict a ham sandwich. I know this to be true. I've seen it happen. I colluded with the process.

Seven years ago I served on a federal grand jury. It lasted a month. We heard forty or so charges. We approved them all. Not once did we fail to indict.

Before the grand jury there was no defense. The prosecutor presented the evidence for "Probable Cause." You couldn't challenge their statement. You couldn't raise alternative interpretations. You couldn't speak up for the circumstances of the defendant; you couldn't hear from the defendant; after all, as the prosecutors said, the person wasn't yet actually a defendant. To indict is not to convict, they said. This person will have their day in court, they said, and then at trial they can raise all the concerns that you good people are raising now. Don't worry about the effect of your actions. It will all come out well in the end.

Yeah right. Few of them will ever get a trial. They can't afford it. Not many of them will be picked up pro bono by a competent lawyer. They'll cop a plea, confess to something they did or didn't do, without a briefing on the indelible consequences of that plea, because they have no other choice; so they'll do anything to avoid the trial. They'll testify against someone else, the bigger fish, and be left on the trash heap.

Forty or so charges came before us, and we indicted every person charged. You could tell that a few of those people were felons, and one was running an industrial scale marijuana farm. Many of them had committed the deadly crime of returning to the United States after being deported. Seven or eight had, at the instigation of pals or a pimp or a boyfriend, moved a package from one place to another, a package containing just ever so slightly too much weed. We indicted them all, in twenty minutes or at most an hour.

Now I would view that work in a very different way.

So now I know for sure that you can indict a ham sandwich. Unless the ham sandwich is a white police officer.

And now I'm marveling at the special grand jury, with its very special process, called into being around that police officer in Ferguson, Missouri. That grand jury has made a decision, and their decision will be announced in a few minutes. I will finish writing this before their decision is announced.

But now, before we hear what they have done under direction of a reluctant prosecutor, I remember that I know what a grand jury is, and this was very different.

The person who would be charged, (that person who is "not yet a defendant" and may never be one), got to speak his piece to the grand jury. The prosecutor has not even recommended a charge. All interpretations of the evidence have been presented -- all the ways in which the person suspected might not actually have done the things of which he might be charged. In other words, it's a trial, though we have not been told so -- a trial with no prosecutor. The implication would be that the jurors are pressed to look for the standard of guilt beyond a reasonable doubt, a standard vastly higher than the routine standard of probable cause to bring a charge. That's why it's taken so long. The people I indicted seven years ago got twenty minutes. Darren Wilson got three months to make it go away.

Maybe there's a better way to indict people than grand juries. If so, tell me what it is. But this was called a grand jury, and given that I know what a grand jury is, I cannot fail to see that some people get very special ones. I hope that what it looks like is not what it is. I won't know until the decision is announced, and it hasn't been announced yet.

This is what it looks like. It looks like the killer of an unarmed jaywalker has special protections, provided he has a badge and a European heritage. If that isn't true, if that isn't what the prosecutor meant to say, he should have done things differently. Now we'll see. I'm waiting.

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