Thursday, January 17, 2013

Let the Grand Jury to its Job

Let the Grand Jury do its Job
Lila Kanovsky[1]
In the wake of Aaron Swartz’s death, much of the public animus has been directed at the government prosecutors, claiming prosecutorial “bullying” and overreach. The 13 felonies he was charged with and the possibility he faced of decades of imprisonment, have been cited as contributing factors to his suicide.  Some are blaming the lawmakers (“today our criminal laws are so expansive that most people of any vigor violate them in some way” A petition on the website We the People (which has, as of writing, garnered more than 37,000 signatures) states:

A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path.

I believe that much of this blame is misdirected, and that the fault lies instead with a too easily overlooked institution: the Grand Jury. 

Prosecutors carry a unique role.  As a representative of the government run by and for the people, the prosecutor must be concerned not only with winning, but with achieving justice.  However, the prosecutor must also serve as the advocate when enforcing the law of the land, especially the criminal law which can only be enforced by the government.   Although the prosecutor has discretion, it is not her job to question the wisdom of the specific laws she is enforcing.   Prosecutors get criticized when they do not enforce laws against certain persons (   

The reality of being a prosecutor also plays a part in how prosecutors bring charges. Prosecutors typically carry heavy caseloads that make it a practical necessity to plead out a large percentage of their cases. The term plea bargaining is there for a reason.  As with any negotiation, each side benefits by entering with a strong hand.  A smart prosecutor will try to indict on as many counts as possible; their negotiatingposition is better when a prosecutor can offer to drop more charges in exchange for a guilty plea.   A defendant facing 50 years in prison is far more likely to negotiate a plea than a defendant facing three months.   Is this coercive? Absolutely.  Is this how prosecutors need to operate to effectively do their jobs?  Yes. 

What happened to Aaron Swartz was a tragedy, but the solution is not to ask prosecutors to perform their jobs lackadaisically (by not filing charging) or to behave irrationally when performing their jobs (by not using possible charges to get defendants to plea).   To prevent the type of injustice present in Swartz’s prosecution, we need an independent body that can oversee a prosecutor’s proposed charges, hear the evidence, and then decide whether, in addition to being convictable, bringing these charges is the right thing to do. 

The irony is that this body already exists, in the form of the Grand Jury. 

The Fifth Amendment of the constitution guarantees Grand Jury indictment on felony charges.[2]  In discussing the Fifth Amendment, the Supreme Court stated: “the purpose of the amendment was to limit the powers of the legislature, as well as the prosecuting officers, of the United States…”[3]  The Grand Jury has been described by the Supreme Court as “…a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor..."[4] Notably, the Supreme Court does not say the Grand Jury’s function is to protect against a prosecutor acting unlawfully, only “overzealously.”   Moreover, to limit the power of the legislature and the prosecutor means that the Supreme Court acknowledges that the legislature and prosecutor have legitimate power, and the Grand Jury may and should limit it. 

If that is the Grand Jury’s purpose, though, it is certainly not reflected in the instructions we give Grand Jurors on how to do their jobs.The model grand jury instructions, approved by the Judicial Conference of the United States in 2005 (and used almost verbatim in most federal courts) are available at  Among other things, the instructions state (emphasis added):

9. You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is to be determined by Congress and not by you.

10. Furthermore, when deciding whether or not to indict, you should not consider punishment in the event of conviction. [. . .]

25. To return an indictment charging an individual with an offense, it is not necessary that you find that individual guilty beyond a reasonable doubt. You are not a trial jury and your task is not to decide the guilt or innocence of the person charged. Your task is to determine whether the government's evidence as presented to you is sufficient to cause you to conclude that there is probable cause to believe that the person being investigated committed the offense charged. To put it another way, you should vote to indict where the evidence presented to you is sufficiently strong to warrant a reasonable person's belief that the person being investigated is probably guilty of the offense charged.

These model instructions communicate to a Grand Jury that their only function is to determine probable cause.  They explicitly state the Grand Jury should not judge the wisdom of laws or considering the sentence.   How can a Grand Jury limit the power of the legislature and the prosecutor if their only function is to determine whether a law exists and that there is probably cause to believe that the defendant violated it? 

That is what failed in Aaron Swartz’s case.  In order to bring the initial indictment and then the superseding indictment, a grand jury heard the prosecution’s evidence, heard the proposed charges and agreed that Aaron Swartz probably did the things he was accused of doing.  No one will deny that there was probable cause to indict on that basis.  However, if the Grand Jury had been instructed in their role as a protective bulwark standing between the individual and the overzealous prosecutor, would they still have indicted Swartz on 13 counts?  Had the Grand Jury known that Swartz was facing upwards of 50 years imprisonment for his actions, would they have returned the same indictment?   Or might that Grand Jury have realized that, although lawful, charging Swartz with 13 felonies was not the right thing to do? 

Irrespective of the historical role of Grand Juries and whether the current Grand Jury instructions are constitutional,[5] I suggest that congress should mandate that grand juries be explicitly instructed in their role as bulwarks against overzealousness.  Justice Hawkins has suggested that the model instructions should instruct “the jurors that they are the conscience of the community and are not bound to indict in every case where a conviction can be obtained.”[6]

Rather than blaming prosecutors for doing their best (by being zealous advocates and making their caseload manageable through plea bargains), we need to empower the Grand Jury to serve this important function as a watchdog for justice. 

[1]The author is a graduate of Columbia Law School, currently works as a Program and Policy Analyst at the Department of Agriculture, once worked as a federal prosecutor, and has sat on a Federal Grand Jury. 
[2] The first clause of Fifth Amendment of the constitution states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless or a presentment or indictment of a Grand Jury,” The Supreme Court has interpreted this to mean that all felonies must be indicted by a grand jury.  

[3] Ex parte Wilson: Supreme Court of the United States. March 30, 1885 (infamous crime is determined by punishment)

[4] U.S. v. Dionisio: Supreme Court of the United States January 22, 1973 410 U.S. 193 (GJ could compel voice exemplar of witness)

[5] The instructions have been examined by some appellate courts and found to pass constitutional muster.    
[6] US v. Marcucci, 299 F.3d 1156, 1170 (9th Cir 2002) (dissent).  

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