Grand Juries can be grand

There are doubtless many dissimilarities between the Sanford, Florida confrontation where George Zimmerman may or may not have been justified in killing Travon Martin, and the one near Shiner, Texas where an unnamed father killed a man who he claims was sexually assaulting his six year old daughter. The most important one is the manner in which it was handled by the authorities post.

In Florida, the police and state prosecutors – initially decided not to charge Zimmerman without reference to a grand jury. Later, after some questionable aspects of the confrontation were aired in the media and Florida politicians were beginning to feel heat, a special prosecutor was appointed and unilaterally charged Zimmerman with the most serious offense possible – again without a grand jury. (See my previous posts in this regard here..)

In Texas, the prosecuting authority immediately referred the case to a grand jury that promptly heard the case and declined to indict the man – apparently finding that the homicide was justified. Because twelve citizens, who have no stake in the outcome, have looked at the evidence and found there was justification, it is unlikely this case will cause anywhere near the furor the Zimmerman-Martin case has, even if it has a racial/ethnic component (which is unknown because the father and child remain unnamed publicly).

The U.S. Constitution provides that no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. This is one provision of the Bill of Rights that is not applicable to the states, for reasons which are too arcane to go into here. Nevertheless, many states have the same requirement in their constitutions. Texas does, and I believe every state should, as it is good public policy. They haven’t asked me yet, though, and can make their own call.

Grand juries have been called both a shield and a sword. This is because, as an arm of the court, they have subpoena and broad investigatory powers. As a practical matter, they have to rely on the police and prosecutors to bring evidence before them, and that evidence can be quite selective. Federal prosecutors in particular have been accused with abuse, and one wag opined that prosecutor can get a grand jury to indict a ham sandwich if they want to. I once was told by an Assistant U.S. Attorney my client better think about pleading guilty because she didn’t indict folks she couldn’t convict. (After a pre-trial hearing, the judge threw that one out of court. Hey, it ain’t bragging if you can do it.)

Nevertheless, the members of the grand jury cannot be forced to indict or not indict an accused person. And, if they decline to indict – termed a “no bill” – the case can be revisited. Jeopardy does not attach in a grand jury proceeding. Most importantly, it is the judgment of members of a community – in Texas it takes nine out of twelve member to indict – that there is or is not sufficient evidence to have a trial. Being brought to trial itself can be punishment enough in some instances for the stress or uncertainty it brings on.

Anyway, we do know that here in Texas, one is justified in using deadly force to protect his child against a rapist. Citizens have said that is what happened.

The AP story as reported by the New York Times can be linked to here..

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