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Constitutional education, history, commentary, reform, compliance, and interpretation.

2012/01/22

Fixing the grand jury

As a long-time advocate of grand jury reform I am often asked to summarize how we might do that. I have a website and a sub-site dedicated to that, containing several articles, but it is again time to outline the subject.

To understand what to do we need to cover several points:
  1. How the grand jury was supposed to work in the Founding Era, recognizing that then as now implementation was sometimes imperfect.
  2. How the grand jury is supposed to work today in each state and at the federal level, based on laws on the books.
  3. How grand juries are actually being used today, abusively or neglectfully.
  4. The historical steps that took us from the Founding Era to today.
  5. The things the grand jury needs to do things today for which it was not originally designed.
  6. The points of departure from original standards or today's needs that can be a checklist for reforms needed.
  7. The best strategy and tactics for getting those reforms made.
  8. Popular misconceptions that lead some reformers astray.
Now let us examine some in more depth. But I will start with (6) and visit the others later.

Here are the main standards that a grand jury needs to meet:
  1. Selected at random from the general public, with perhaps some filtering, but without "stacking".
  2. Selection  by a neutral party (not the judge or prosecutor).
  3. Size of 23.
  4. Decision by 12.
  5. Election of foreperson by the members.
  6. Term of service long enough to learn how to do it.
  7. Limits on terms of service to avoid entrenchment.
  8. Adequate training of grand jurors.
  9. Prevention of undue influence by interested parties, especially judge or prosecutors.
  10. Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments.
  11. Enough time to examine each case, or enough grand juries.
  12. No impediment to access by public to members to present complaints or give testimony, except for reasonable scheduling.
  13. Acceptance of any person, not just a professional prosecutor, being appointed to prosecute a case by the grand jury granting him an indictment.
  14. Acceptance that a grand jury indictment removes official immunity from criminal prosecution.
  15. Acceptance that a grand jury finding of sufficient evidence of misconduct removes official immunity from civil prosecution.
  16. Establishment of rule that a grand jury must determine whether a court has jurisdiction before returning an indictment for that court.
  17. Avoidance of excessive or abusive use of grand jury to harass, intimidate, discredit, or injure persons.
  18. Prevention of misuse during trials of evidence obtained by grand jury.
Next, let us examine how we might get the standards met.

Flaws in the Branson approach. Ron Branson, founder of the J.A.I.L. proposal, has led several efforts that deserve commendation for what they seek, but some criticism for their method.
  1. Creation of a "new" kind of "special" grand jury with new powers. Actually, the traditional grand jury could do all those things, and while some other kind might seem "new" by comparison, and might "shock" the system, it may work better to try to reform the existing grand jury system to return it to original standards.
  2. Trying to institute the reform with a state ballot initiative, without the level and kind of support needed to overcome opposition, get it passed, and get it implemented and used if passed. The shortcoming of this approach was most clearly shown in the effort in South Dakota, where despite a high level of low-intensity public support shown in polls, the establishment united to discredit it and the proponents lacked the resources to counter that. It also seems likely that the vote count was rigged to defeat it.
  3. Failure to appreciate how deeply entrenched departures from original practice are, making it infeasible to accomplish reform just by passing some legislative act for which there are not enough internal champions to make it happen. If there is not enough buy-in on the part of at least a few key players within the system, anything on paper will just be ignored or defied.
However, the efforts had great value, even in failure, for public education. As "political theater" they did accomplish something.

Reforming an entrenched legal culture. Laypersons commonly view laws as having some magical power to influence human behavior, and imagine that if they can just get laws adopted that direct reforms for things like grand juries and allow for no departures, those reforms will be carried out and the departures avoided. But human beings in general, and officials in particular, don't operate that way. There are already enough laws on the books concerning grand juries that, if they were conscientiously followed, would go most of the way toward the return to original standards being sought by reformers. The departures are symptoms of a deeper problem. If enough of the key internal players were conscientious, the departures would be reduced or eliminated.

One of the critical design elements for the design of the Constitution was separation of powers. The Framers didn't just rely on procedural protections. They recognized that to ensure procedures were properly carried out, powers needed to be structurally set in opposition to one another and provisions made for different roles differently filled so that adversarial processes would take place. They tried to avoid having competing roles fall into the "same hands", that is, controlled by one faction with interests in conflict with those of the general public.

That is exactly what has happened. In the original design, there were almost no professional public prosecutors, lawyers were not bound under "state bars" controlled by judges, and there were no "unauthorized practice of law" statutes. There were no law schools "accredited" by a single Bar Association, with standardized bar exams that drive legal education. There was official immunity from judgment for actions within one's jurisdiction, but not from suit to determine whether the actions were pursuant to law. Legal arguments were made to trial juries, and juries were used for almost all cases. People were better educated about their duties as jurors, both trial and grand.

We can't fix just one thing. When corruption is deeply entrenched even replacement of all the actors won't durably fix it, because the system will just replace them with more of the same. The corrupt are organized now to keep reformers out. We need to cultivate a steady stream of reformers to move into key positions and bring in more reformers. There are several main approaches:
  1. Electing reformer judges and prosecutors. In previous times people demanded these positions be filled by election in many jurisdictions precisely to provide the opportunity to remove corrupt ones. Today reformers are often afraid to challenge corrupt incumbents, but occasionally it is possible, and we need to seize on any opportunities.
  2. Legislative reforms. It is sometimes possible to get a legislator to champion some reform that actually slips past the opposition. A single such reform is unlikely to be sufficient, but a steady stream of reform legislation from many directions can have an effect.
  3. Litigation. This can be costly and unlikely when it challenges entrenched corruption, and no single effort is likely to suffice, but a flood of litigation from many directions can work. 
  4. Public pressure. This begins with public education, proceeds through organization, and leads to massive demands for specific reform. Remember that most of the rights we are supposed to have were originally won by angry mobs surrounding courthouses. There is no substitute for numbers of intense people. Being right is not enough. One has to have supporters.
None of these are easy, but we need to work on them all. We may not get some single comprehensive reform, but we can get instances of return to original standards on each of the points listed above, jurisdiction by jurisdiction. It will take steady pressure over years or decades.


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