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Grand jury reform

It's reform time again for the criminal justice system.  Up here in Cuyahoga County, we've been looking into bail reform, and just the other day the court announced that the steering committee which had been formed several months ago to look into the matter had appointed the heads of the four committees who'd be looking into the matter, and the steering committee announced that the committees would begin looking into the matter in earnest in a month or so. 

But we won't have to wait any longer for a report on grand jury reform.  That report was released last month.  Ten is always a good number for these kinds of things - it worked for Moses and for the Founders - so the report contains ten recommendations on how to fix what's wrong with the Ohio grand jury system.  Let's see what they came up with.

Ferguson calling.  The very first recommendation has less to do with the way the grand jury works than who presents evidence to it:  all police lethal use of force (PLUF) cases would be handled by the Special Prosecutions Section of the Attorney General's office. 

That section already handles cases where the county prosecutor's office has a conflict, and can be brought into a case because of their specialized knowledge in certain areas, like organized crime.  But this is different:  referral to the AG's office would be mandatory in every PLUF case.

There's a certain logic to that; as the report notes, those cases put the country prosecutor's office in the uncomfortable position of investigating a police department with which they interact on a daily basis.  On the other hand, former Supreme Court Justice Robert Cupp, a member of the committee, makes the sensible point that not all PLUF cases implicate the societal concerns that some recent ones have, and that there should be some screening mechanism to weed out those "where the facts do not support a prima facie appearance of improper or unreasonable use of lethal force."

Anyone want a ham sandwich?  The next two recommendations are aimed at restoring the independence of the grand jury, which is to be accomplished by telling them they're independent.  OJI 301.07 contains a sample of the charge the judge should give to the grand jury (it's contained in the Appendix to the Report), and the panel suggests it be amended to state that the grand jury foreman can request advice from the court at any time and that the grand jury is allowed to ask the prosecutor if any other charges can be considered, and emphasizing that the grand jurors are the "sole judges of the facts."  Those instructions should be provided in writing, and the jurors encouraged to re-read them from time to time.

Making a record.  The big change here is to allow records of the grand jury proceedings to be made public in certain situations.  There are numerous reasons for grand jury secrecy:  to shield an innocent person from accusations which are later shown to be unfounded, to prevent a guilty person from absconding because he knows he's under investigation, to prevent tampering with witnesses, and the like. 

But there are cases, like the police shooting cases which result in a no-bill, where secrecy furthers societal discord.  Under the proposal, a persons could petition to release the grand jury proceedings in a particular case, and the judge could order release if he found by clear and convincing evidence that the presumption of secrecy is outweighed by the public interest in disclosure and transparency, the public knows that an investigation was conducted, and the public knows who was being investigated.

Let's make a movie!  The final set of recommendations deal with making grand jurors, and the general public, more aware of the process.  Right now, regular jurors get to watch a video explaining what they do before they get to do it, and that panel recommends that grand jurors get the same attention, by way of both a video and an informational brochure.  And efforts would be made to educate the public on the grand jury's role.

My take on all this.   I tend to side with Cupp on the PULF cases.   I like the idea of stressing to grand jurors that they are independent from the prosecutor's office, although I have no illusions that this will result in a bunch of cases being no-billed when there's no reason for an indictment.  There's certainly no harm in making the public more aware of the grand jury process.

The biggest change, of course, is in the disclosure of grand jury proceedings in certain cases.  That might've been helpful in the Tamir Rice case up here, where the grand jury refused to indict the police officers involved.  The prosecution presented defense experts on the use of force, but those have subsequently claimed that the prosecutors did everything they could to discredit their testimony.  We'll never know, and maybe we should have.

What's not addressed is the problem of a witness testifying at trial contrary to what he told the grand jury.  There's no way for the defense lawyer to know that; while CrimR 6(E) does allow grand jury proceedings to be disclosed to the defendant, that's only if he shows a "particularized" need for it, and the mere possibility of contradictory testimony doesn't cut it.  A contradiction would, in theory, be exculpatory evidence, but in this county and many others, the trial prosecutor isn't the same one who presented the case to the grand jury, so the trial prosecutor has no idea of whether there is a contradiction in testimony.  Amending CrimR 6 to require the trial prosecutor to have the grand jury testimony, and requiring him to disclose it to the defense in the event of a contradiction, sounds like a good addition to the panel's recommendations.

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