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My earlier post was meant to point up the fact that in any communicative setting, whether it be a grand jury room, a newspaper, or television, or internet, the person controlling the communication ALWAYS has some degree of influence over the ultimate message received by the audience, whether or not it's by design. If that's uncomfortable, o.k.
By the way, I agree with John's earlier point that we probably are on the front edge of a societal shift in thinking about cell phones, and I suspect in a few years this may not be such a quandary. Using the seat belt example, though, there was quite a curve in the level of diminishing tolerance for violations, no? So my point is, until everyone generally accepts that driving while needlessly distracted by those insipid devices is a bad thing, maybe there should be some tolerance practiced. The open container law is another good example. NObody around here wanted to be the first one to write an unimpaired driver for that one. Now it's common.
John, I don't think you'll soon likely get your objective, "two-pronged test" on this issue, since it's a decision involving some judgment, hence, some subjectivity. Suppose it's up to the individual and whether they feel like they have a handle on what the community's standards are on a particular issue.
The problem I have in answering the question is with how it is phrased. If the accident is "plain vanilla" then almost by definition it probably involves only negligence and not criminal negligence. We make decisions all the time, but on a case by case basis, of whether the facts display a particular culpable mental state. We should not need the grand jury to try to make those calls. I think you must initially consider why the prospective defendant failed to stop, or failed to yield, or how dangerous his speed was on its face, and the relationship between the surrounding circumstances and the certainty that harm would follow. There may be a lot of fatality accidents, but criminal prosecution is not the cure-all for that. The mental state is not necessarily tied to the severity of the result, so that should not be the sole test in any case for exercise of the proscutor's discretion or even presentation of the case to a grand jury.
So, how do you deal with the fallout from the victim's family, when the prosecutor, not the grand jury, has decided there is no crime?
So to avoid the fallout you try to shift the family's attention to the grand jury. But won't they be just as likely to continue to assume you had a very important role in the ultimate decision? I also have to disagree that getting a charge (that is not going to be prosecuted)indicted is a good or proper way for the community to establish any standards. After all, each of these cases remains largely unique. I would have no problem with gathering the facts, presenting them in some fashion to the grand jury (probably just in an informal discussion format), and asking them for an opinion as to whether the conduct sounds criminal or like something they think others would convict upon. But, going beyond that, just to create some window dressing and "cover" for the decision you have already made, seems questionable to me.
Martin, the grand jury is not a test audience for a TV show. They are an independent body that should be reviewing the potential criminal cases to be prosecuted as felony offenses. The law gives them the authority to true bill, no bill, or pass (for additional information to be gathered).
So John, is it your position that only the grand jury get to exercise discretion? What about the investigators who review the cases initially? We obviously want them to exercise good judgment in what they refer on for prosecution, but if they get to exercise discretion, and the GJ gets to exercise discretion, but the prosecutor doesn't, then we've just taken the only elected official out of the "discretion loop," haven't we?
This all boils down to the issue of what are the proper roles for various players in the system, and who gets to exercise discretion. It reminds me of an old h.s. Civics lesson (do they even teach Civics anymore?) about whether elected legislators should act as mirrors for the electorate (doing whatever the majority of the electorate wants) or as independent actors who must answer to the electorate if they get too far out of the mainstream. The answer is usually a little bit of both. How do elected prosecutors' roles differ?
That's not an easy question to answer, as the responses on this (very intriguing) thread demonstrate. And it's compounded by the fact that as more discretion enters into the judicial system, individual justice increases, but communal equality decreases (because different people receive different treatment). But that's a whole 'nother philosophical problem for another day ...
I have had one case like this that I did not take to a Grand Jury. The victim's family wrote some nasty letters to the local newspaper. I broke my own rules and wrote my own letter to the paper. It worked out fine. I have one awaiting trial now that I really did not want indicted, but that I will try to a jury pretty soon. These cases have great potential for bad press. But in exercising our discretion, if we make decisions for the right reasons (and not for political ones) things usually turn out good. This thread just shows how difficult and important some of our decisions are.
Shannon, you, of course, speak the truth. Everyone has discretion. And, as an assistant DA, I likely would have demanded the right to exercise it to avoid having someone else make a decision that I might not like. For example, I wouldn't want to let a grand jury even have the freedom to indict if it meant I had to prosecute a bad criminally negligent homicide case.
As an elected DA, I have shifted my focus. Particularly in the case of incidents that result in the death of someone (I am deferring to your concept of discretion for all other types of cases for the moment), I now believe those incidents should be subject to review by a body of people who best represent the community standards.
I do the same thing for all officer shootings. Even if the shooting was completely justified, I want a grand jury to review the circumstances. It gives the police agency feedback on their training and decision to use deadly force. It gives me an overview of how these situations develop. It gives the community a way to be confident that an independent investigation was done.
Of course, every now and then, a grand jury may decide to indict despite the absence of sufficient evidence. Frankly, it is at that point I think the DA must exercise discretion.
As the ACDA, who handles Grand Jury for Mr. Sowder, I can promise that in this office, we do not steer a Grand Jury, or even make many recommendations. At the beginning of the Grand Jury's term, they are instructed by the judge and by me, that they are independent in their decision-making, but dependent on us for explanations of the law.
I always tell each Grand Jury, they must make their own decision, because if they indict a person, simply because they feel like I want them to, they must remember that the petit jury will be made of of people like them - citizens, not cops & prosecutors. Folks like them will make the ultimate decision, not folks like me, or cops.
One of the things I also tell them is to think about this: if they have difficulty getting 9 to vote for a True-Bill, imagine how difficult it will be for us to get 12 citizens to unanimously convict at a trial, given the evidence they've heard/seen.
We do give every piece of information we have to the Grand Jury. We invite defendants to appear, where we think it might be helpful and in any case, where a defendant has expressed a desire to appear (unless, of course, we're sneaking up on them with a sealed indictment!). Sometimes, we allow defense testimony through sworn statements and we've even read short "restatements of the law" from defense attorneys to the Grand Jury.
We also invite and sometimes subpoena civilian witnesses to Grand Jury, where we think the witness' perspective, or credibility will be an issue. We also instruct the Grand Jury that, they may pass any case and ask for more evidence, or additional witnesses and we'll do everything we can to get it for them.
We typically run 300 - 400 felonies through Grand Jury each month. We even present squirrely misdemeanors to them for their guidance. We intentionally present "stinkers" to them, whenever we've rejected a charge and then receive a lot of complaining from interested persons/complainants. Because of this, at the beginning of each session, I tell the Grand Jury, just because we present a case to them, does not mean we're necessarily seeking an indictment. I also encourage the Grand Jury to ask the detectives and cops, who appear before them, to give their personal assessment of the credibility of the witnesses they've encountered and to say whether they think a particular case is worth pursuing, given our limited resources and the likelihood of conviction. On the wall in our Grand Jury room, as well as in our lobby, we have a big framed sign which quotes the CCP about how the prosecutors' duty is not to convict, but see that justice is done.
We use our Grand Jury sort of like a shadow jury - whom should we charge and with what? They no-bill stuff I'd like true-billed and they true-bill stuff I'd like no-billed from time to time. I've even had Grand Juries simply no-bill obviously guilty people out of sheer mercy. I tell them, do what they think is best and don't worry about my reaction - I've been disappointed & surprised by juries & Grand Juries before and I'll get over it.
Appreciate everyone's input. We know why we get paid the big bucks to do this job.
I see a couple of different philosophical approaches running through these comments. Both approaches have good and bad points and I guess it is just up to the DA to decide which he/she wants to take. I know that I am going to be criticized from time to time about decisions to exercise my discretion (sometimes even from victims) but that comes with the job. I much prefer to deal with those problems prior to grand jury rather than after the grand jury has indicted a bad case, which gives the victim the feeling that the case is better than it is and leaves me with a case that I know I am going to have to plead to something distasteful, or lose outright. I believe honesty up front is the best approach. Personally, I know some prosecutors who run every case presented to them by the grand jury under the theory that the grand jury should make those decisions. They fully expect a high rate of no bills. However, everyone knows (including the cops who present the cases) that this is what is going on and I think most of them consider this to be a cop-out (no pun intended). You lose a valuable teaching tool for police officers when you blame everything on the grand jury. Sure it gives you a way to pass on the blame but everyone is smart enough to figure out what's really happening. Bite the bullet and do what we were elected to do ... make the tough calls.
We in Lubbock do reject cases outright. We do not run everything past a Grand Jury. If, however, we encounter resistance, or complaints about our decision(s), we will often run a stinker through the Grand Jury, just to get the citizens' take on the matter. Very seldom does the Grand Jury see it differently than we.
Trey, I have done the same thing. In fact, early in my career as district attorney I would run cases through grand jury knowing that a probable no bill would result and I would then have the backing of the grand jury to explain to the victim or police officer why my hands were tied. Then a case came along that caused me to change this approach. Had a murder case with a pretty good self defense claim. Victim's family could not (or did not want to) understand the legal issues and the reality of the circumstances. They pushed for grand jury. I finally relented believing that a no bill would result. Grand jury true billed the case. Acquittal at trial. Victim's family still upset because I obviously blew the trial of the case since there was enough evidence for the grand jury. I learned a valuable lesson and will never again present a case to a grand jury simply because someone disagrees with my decision about whether it should be filed.
I have been surprisedby a few true-bills & no-bills now & then. When we have a big, messy case, though, we don't have any trouble. True enough, we do get some sympathy true-bills, which result later in dismissals, or aquittals and then screaming complainants. It is difficult to explain the difference - the very big difference - between probable cause and beyond a reasonable doubt to people, who are emotionally involved with a case.
We often have folks try to litigate their civil disputes through the criminal system. Generally, when I have such a thing, I explain that the parties have a civil dispute and have their own attorneys, not to mention the penal code's deal about failure to perform one's contractual obligations.
Of course, since hearsay is admissible at Grand Jury, they do not get a good feel for the credibility of witnesses, or how the witnesses will behave in front of a petit jury.
When I've got a stinker and I know it, I'll usually run it by Grand Jury if for no other reason than to teach the cops about what'll fly & what won't and to avoid the complaint from civilians that I didn't give them a fair shot.
I agree there can be a benefit to taking a bad case to the grand jury to make a point with a police officer who keeps insisting on presenting cases with bad facts, too little investigation or insufficient evidence. However, it's a bit difficult for me to go that route because I always tell the grand jury during the first session that I do not present cases to have them no billed. It's just been my experience that a grand jury can usually tell when a district attorney is trying to use them for that purpose, and most of them don't appreciate it. Now, I can imagine the rare case where you might want to go ahead and tell them that this is being presented at the insistence of someone and give your opinion as to the sufficiency of the case. I still prefer (after my experience with the murder case) to deal with the problem without going to grand jury.
I always tell the Grand Jury, just because it's presented to you, does not mean we're necessarily seeking an indictment.
A wreck three years ago that resulted in the deaths of two bicyclists did not amount to a felony, jurors decided Friday after two hours of deliberations.
My only concern is the "runaway" grand jury - the one where the jurors have an agenda, and use their forum to advance it. It can develop slowly through the session, or can be evident from the start. Some grand juries will not indict "personal use" cases (which, for some, is 10 grams of cocaine). Some will indict or refuse to indict for improper reasons (and of course, you can only surmise it based on patterns, as their deliberations are secret). For example, I have seen GJs refuse to indict agg assaults because of the sexual orientation of the victim ("gay panic"), or indict weaker cases because of the "no means no" philosophy (even though sexual assault requires force or threats of force).
I hate the fact that cop related shootings have to be run past a grand jury - seems like a waste of time in a righteous case. But it always gets done - simply to let the public know that the DA isn't covering up for a rogue cop. By the same token, I can see the argument that "just an accident" cases need a second pair of eyes, and, usually, a grand jury will do the right thing. But what if they decide (which is their right) to indict on some weird theory of manslaughter or murder that they, in their collective wisdom, have come up with?
Exercising prosecutorial discretion, for me, has to be done at all levels, and I know that I often debate a case with myself for an eternity,. In the end, what is important for me is that we do justice - we do "the right thing". It is impossible to be right 100% of the time, but I am proud of Texas prosecutors - they usually get pretty close......
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