TheAgitator.com
The Grand Jury Farce
Thursday, December 30th, 2010“Ken” at Popehat, himself a former Assistant U.S. Attorney, reacts to the government’s silencing of pain patient advocate Siobhan Reynolds:
Let me pause and offer you a dark confession. I miss the grand jury. When I want documents or evidence now as a criminal defense attorney, I have to ask the government for it, wait for them to laugh and refuse, and then run to court and try to convince a judge to order the government to abide by its obligations. As a civil litigant, I have to write long, complicated demands for documents and information, wait a month for a response, get a response refusing most of what I asked for, engage in a letter-writing campaign, and eventually go to court seeking an order making the other side give me the documents, often months later.
Oh, to use the grand jury again! As a federal prosecutor, I could just issue grand jury subpoenas. I could refuse extensions at my whim. I could ask for whatever the hell I wanted based on the most remote suspicion that it might be relevant to a federal investigation. I could demand compliance with confidence, knowing that it is extraordinarily rare for a federal court to grant a target’s motion to quash or limit a subpoena. And I could do all of this under the ridiculous fiction that I was acting on behalf of a grand jury so long as, occasionally, I stepped into the grand jury room and had a federal agent testify briefly that “Hey, we’ve got an investigation going into [vague subject], we issued subpoenas in your name, we got these documents, the investigation continues.” 99% of the time, the grand jurors wouldn’t look up from their newspapers, hoping they’d get let out early that day. Were the grand jurors a check on government abuse of the subpoena power? Don’t make me laugh until I throw up.
Wow, pretty complete insider view. “Don’t make me laugh until I throw up” could be used a lot on this site.
From the original essay:
I’ll take this as hyperbole, and not that he’s one of the “Internet tough guys” we discussed here a while back.
Of course, Ken makes this argument now that he is on the other side. If it was so clear that it was a miscarriage of justice when he was a DA, what did he do about it? Is he admitting that he abused the system? Its good to see his confessional, but what does it say about his personal and legal ethics?
SJE @ #5
Don’t shoot the messenger! I’d leave and questions about his personal and legal ethics aside and be glad he said what he said.
It’s my hope he’s seen the error of his ways.
crazy.
I hope that any proposed fix to this problem is not something like doing away with the Grand Jury process or substituting what we now have with “professional” juries.
I am not a lawyer (thank god) but I believe the answer lies in limiting the power of the prosecutor. Not doing away with Grand Juries. How that is done is up to greater minds in the fight for liberty than mine.
#4 Mario: I thought it was self-evident that it was a confession to impotent and unproductive rage about the issue, but YMMV.
#5 SJE I think it would be fair to criticize me for willingly participating in an unjust system. But the conduct I described participating in is at most immoral, not legally unethical. Department of Justice guidelines for using the grand jury are very forgiving. And I, at least, never used the grand jury to harass anyone for their exercise of a protected right. I only used it as a tool, as DoJ regs encourage. The problem is that DoJ regs, the Rules of Criminal Procedure, and laws governing grand juries are far, far too lenient to the government.
This was not my grand jury experience. While my service was on a county, not federal level, all of the jurors took the proceedings seriously and asked questions of the police. The prosecutor even told us that she hoped we would convict on marijuana violations, because she once had a jury that would not convict on those charges on nullification grounds. (I tried, but my jury would not go along with that. Also, most of our cases involved higher-level dealings like coke and heroin, not just weed).
So why wouldn’t you want to nullify for coke and heroin, unless there was accompanying theft or violence?
This really hurts.
Ken: I understand the difficulties of working in an environment where certain behavior is not only tolerated, but expected. The fact that the DOJ guidelines permit something does not mean that it is in the interest of justice or “upholds the spirit of the profession” as envisioned by the model rules of ethics. How is this different from the police who claim that “procedures were followed” after leaving a trail of carnage?
One of the most self destructive things about the legal profession is that the ethics codes and bar associations focus a lot of effort on unlicensed practice of law, advertising, and comingling funds, but fail to discipline shady behavior, prosecutorial misconduct, or using the legal process to harrass and intimidate common citizens.
So sad. Now excuse me while I go throw up.
I had at one time many years ago wanted to do law school, and though I didn’t follow through, law has always been a favorite side subject.
Those close to me know this, and so in a recent conversation I confessed that I would rather work as a defense lawyer than a prosecutor – a total change from where my thinking was a few years ago – I had to sit and explain things for a bit.
Good on you Ken.
The triumph of evil. And ultimately it is because too many of the public crave the feeling of security too much. They want to believe that law enforcement is protecting them effectively. So they swallow law eforcement’s image of themselves as heroes. And they give law enforcement what they claim they need to do this.
They want to believe that they could never be the targets of their protectors. And so they see wrong doing and crimes as things that utterly different others do. They could never see themselves as being in that situation. And hence anyone accused by law enforcement must have done something wrong. The alternative is too terrifying.
Short ropes, and long drops, huh? The final paragraph and some of comments offer similar views.
Given the, vigorous, exchange that developed in Radely’s own thread on the subject of violence, I think a trend is developing. People are giving up on the system, the faith is lost, and the outrage is reaching a boiling point. This isn’t the manufactured outrage that exists towards, health care or illegal immigration issues. This is honest to goodness anger over abuse of government power and ruination of innocent lives.
I think we are in for some interesting times.
Even educated people who follow current events are shocked by some of the behavior that gets routinely reported by Radley. Cheye Calvo was a MAYOR and was shocked at the behavior of the county cops, and at how widespread was the problem of armed raids, and the lack of accountability (check out his comments).
My problem is that the government actors justify their actions with rules and regulations that they themselves made and which, if you actually put to the voters, would probably not pass. The general public is disgusted by a lot of institutions and people in authority. See the popularity of political satire, fake news, and the Tea Party. If those in power are unwilling to reform themselves, then the citizenry will elect people who will. Unfortunately, they will probably elect the worst sorts of rabid populists and will make things worse (e.g. look at the constitutional amendments in California). The elites need to fix the problems now.
For example, US Doctors used to police themselves, but were unwilling to punish or compensate enough. The trial lawyers now ensure that, although the new system creates all sorts of problems for doctors and patients. How long can cops, prosecutors and others rely on their own “in house” review system?
Brandon (#9) – If I couldn’t get them to nullify for weed, what makes you think I could get them to nullify for hard drugs?
. I wish to do away with the Grand Jury in New York Courts. The grand jury has been around in English Law since 1166 when King Henry II used it to consolidate his kingdom. Britain did away with the grand jury in 1933 because of misuse of the power the grand jury has. All other countries and about one half of the United States had done away with the Grand Jury. I view removing it from New York Law as very doable.
I grew up in Columbia County and owned a 380 acre farm. A serial arsonist burned three of my barns. When I put pressure on the Sheriff he arrested my 19-year-old son for burning our own barn. My son was indicted on 13 counts relating to the arson by a grand jury. When the trial approached it was discovered a forced “confession” could not be used and charges were dropped.
The power to arrest when a confession is the only evidence should require a hearing before a judge where witnesses can be cross examined and where the defendant has the right of council. The Grand Jury is controlled by the District Attorney and he controls what the grand jury hears, It is secret and issues indictments. It is clear the Sheriff misused the power of the Grand Jury and the District Attorney. With no presentable evidence, my son should never have been arrested and indicted. I am seeking to do away with the grand Jury in New York State Court It should be replaced with a hearing before a judge as about on half of the states and all other countries have done.