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What do Grand Juries Do? Everett Dirksen (David Duggan, USA, 12/09/14 4:53 am)

The purpose of the grand jury is not, as Massoud Malek stated on 5 December: "to help the prosecutor decide whether to bring criminal charges against a suspect in a crime." The purpose of the grand jury is to determine whether there is "probable cause" to believe 1) that a crime has been committed, and 2) that the accused committed it. The US Constitution guarantees (Amendment V, cl. 1) the right to "presentment or indictment of a Grand Jury." At one point, this may have been a protection against prosecutorial overreach, but the system has subsequently been corrupted to the point that as oft-repeated, "you can indict a ham sandwich."

The reasons for this are many, but can likely be summed up: the prosecutor controls both the witnesses who appear before the grand jury, the questions that are asked, and the legal instructions given. State prosecutors can do an end-run around the requirement of an indictment by proceeding by "information" which is simply a statement of the charges signed not under oath by the prosecutor as an officer of the court. Curiously, the indictment clause of the Fifth Amendment has not been "incorporated" (that is made applicable to the states) by the Fourteenth Amendment's due process clause. Still, most states use the grand jury system if only because it takes prosecutors off the hook for advancing or not unpopular prosecutions. It would be nice to reduce the "probable cause" requirement to probabilistic terms (i.e. more than a 50% chance that each requirement is met--which means if Bayesian hypotheses are employed, that the "likelihood" that the accused committed the crime can be as low as 25.1%), but that has never, so far as I am aware, been sanctioned.

You ask what the difference between a "presentment" and an "indictment" is, and the presentment is a statement of charges made by the grand jury, independent of the prosecutor. An indictment is actually drafted by the prosecutor.

What is curious and quite unusual about both the Staten Island and Ferguson, MO cases is that the prosecutors in each instance essentially viewed the grand jury as the trier of fact in cases in which the issue of motive or intent was subject to doubt. In both cases, the target testified, which is not a right guaranteed by the Constitution (state laws vary). Of course, the target is going to testify that he bore no animus toward the victim and did not "intend" to do him harm. Regardless, in Ferguson, it took only four of the 12-member grand jury to vote against indictment; in Staten Island it took 12 of 23 (so far as I have been able to tell, the split in each case has not been reported).

Separately, John Eipper asked me about Everett Dirksen, Illinois' senior senator and minority leader of the Senate during the Johnson presidency. Probably the second most successful Illinois Republican politician (it's a long slide after Lincoln), Dirksen was known for his silver-tongued oratory and somewhat plainspoken public persona, kind of a cross between William Jennings Bryan and Harry S Truman. From the Central Illinois town of Pekin, outside of Peoria (the high school team in the pre-politically correct days were the "Chinks," because the townspeople thought that if you drilled a hole through the center of the earth you'd come out in China: they were off by only 5 or 6 thousand miles), Dirksen helped Johnson pass both the Civil Rights Acts of 1964-65, and Medicare, assuring bi-partisan support for those legislative initiatives. (Are you listening, Barack Obama?) A champion grower of marigolds, Dirksen labored in vain to have the marigold named the national flower. More significantly, the federal court building in downtown Chicago is named for him; it is part of a three-glass-and-steel building and orange sculpture complex called Federal Plaza, designed by Mies van der Rohe with Alexander Calder lending the sculptural assistance.

In what was the start of a trend among Illinois governors, the "boy-wonder" Gov. William Stratton (1953-61) was indicted after leaving office for tax evasion, not having reported campaign contributions as income when he used them for allegedly personal expenditures. Dirksen testified on Stratton's behalf, charming the jury, and Stratton relied on an IRS opinion stating that unless the contributor specified how the funds were to be spent, the donee was free to use them however he pleased. He was acquitted (the law has subsequently been changed and a politician uses campaign funds for his lifestyle at his peril, unless he reports it as income). This trial took place before the Dirksen building was erected; Stratton's lawyer, John Powers Crowley was later a federal judge in that building (when defense lawyers could become federal judges). Six years ago this week, then Gov. Rod Blagojevich was arrested for violating, among other things the proscription on the use of campaign funds for his personal use. While the government dropped most of the charges arising from those events (i.e., Oxxford suits), Blago remains incarcerated pending the appeal of his conviction for trying to barter Obama's senate seat for more contributions or a better job.

On arrest he was taken through a secret entrance to the Dirksen Building so as not to attract attention.

JE comments: No one better qualified than my favorite Illinois lawyer (David Duggan--I'm fond of Lincoln, too) to comment on Grand Juries and Senator Dirksen.  May I make a layperson's generalization on Grand Juries?  Given the notion of "probable cause," shouldn't a GJ (unlike a trial jury) err on the side of presentment?  In other words, if in doubt, send it to trial?

(Returning to the above, it just occurred to me that Barack Obama is also an Illinois lawyer.  I like him more than most WAISers do, but I'll still rank Duggan and Lincoln as my favorites.)

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