Mimesis Law
24 June 2019

The Grand Jury Process Is A Grim Lie

Nov. 3, 2015 (Mimesis Law) — Somehow, a former ACLU attorney made his way onto a Missouri grand jury and began “intimidating” police officers by asking them questions about local police corruption.

The State moved to kick him off for reasons that were “entirely inadequate,” the trial court agreed, and the issue was taken up on appeal. The Missouri Court of Appeals has now handed Missouri a handbook for removing troublesome grand jurors in the future.

Simply request an illegal order removing the grand juror, let the grand juror appeal, and then disband the entire grand jury since its essential “secrecy” has been compromised by the State’s illegal action. As is often the case, a system that rarely penalizes the government for breaking the law tends to encourage law-breaking, if that is the fastest way to get the job done.

The Court of Appeals had to disband the grand jury, it said, to protect the “integrity” of the grand jury process. But it’s hard to see how much integrity a process can have if its results can be waved away whenever a government official disagrees with them.

The ACLU is characterizing this as a “win.” If we can call it that, it is only in the sense that Evander Holyfield “won” his fight against Mike Tyson by having his ear bitten off. There is nothing about this opinion to prevent Missouri from following the same game plan in case after case.

If the Supreme Court of the United States is right, then, “[t]he grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by finding probable cause to support a criminal charge.”

Missouri law, similarly, states that a grand jury may:

make inquiry into and return indictments for all grades of crimes and shall make inquiry into all possible violations of the criminal laws as the court may direct. The grand jury may examine public buildings and report on their conditions.

So grand jurors can investigate crimes that the court directs them to investigate, but may also make their own independent inquiries (and apparently, go around inspecting buildings).

And while prosecutors are given a lot of discretion to be in the room, in theory, they’re not supposed to be directly talking to the grand jury while they deliberate:

The prosecuting or circuit attorney shall be allowed at all times to appear before the grand jury on his request, for the purpose of giving information relative to any matter cognizable by them, and shall be permitted to interrogate witnesses before them, when they or he shall deem it necessary. No prosecuting or circuit attorney or any other officer or person, except the grand jurors, shall be permitted to be present during the expression of their opinions or the giving of* their votes on any matter before them.

So, in this case, when the prosecutor found out that there would be someone asking difficult questions of his witnesses, he could have simply proceeded as planned. Even if the ACLU attorney was intransigent and unreasonable, Missouri law requires that only 9 of 12 grand jurors choose to indict.

Instead, the prosecutor told the trial court judge that he would refuse to present cases to the grand jury unless and until the troublesome grand juror was removed. At that point, a judge who cared about the independent role of the grand jury, as crowed about in Kaley, would have said, “fine, they’ll just have to do their work without you.”

But see, the justice system is an assembly line. And judges are encouraged in a variety of ways to keep cases moving. And well, it would be so easy just to remove this one grand juror and let the process proceed smoothly.

And then this gets up to the Court of Appeals. Now, as the Court admits in its own opinion, that “this relief (disbandment) was not requested by either party.” But left with the unpalatable options of allowing an independent citizen to begin investigating the machinery of government, or of approving a clearly illegal order, the Court chose a third, cowardly option.

And, let’s be realistic here. The Court of Appeals only chose to find that the grand jury had to be disbanded because, if it let the grand jury continue after the prosecutor had cherry-picked who was allowed to be on it, a flurry of objections would come from everyone else who had been indicted. If such a case were to go up to a federal court, there’s no telling what havoc could be wreaked in the name of due process.

The end result is as sad as it was predictable. The grand jury process continues to be a grim lie, told through gritted teeth. Your rights are protected by this independent panel of citizens.

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  • jdgalt
    3 November 2015 at 1:13 pm - Reply

    Any system that works like an assembly line is not justice.