By Robert Simels, written with Bennett L. Gershman
Originally published in amNewYork on
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Written with Pace law professor Bennett L. Gershman, this commentary follows up on the Broadview Six case and makes the case for changing how grand juries work. The authors trace the grand jury back to the Magna Carta and explain the basics: a grand jury votes a true bill to indict or no true bill to decline, the standard is only probable cause, just 12 grand jurors out of a minimum of 16 must agree, hearsay is allowed, and the prosecutor instructs the jurors on the law. That is why, they note, people say a prosecutor could get a grand jury to indict a ham sandwich.
The authors describe recent cases that show the system under strain. They discuss Judge April Perry's findings about prosecutors' conduct before the grand jury in Chicago, a new rule there requiring that refusals to indict be reported to a judge and disclosed, and reports that the same office is using grand jury subpoenas in a matter involving E. Jean Carroll. They also cite Wyoming, where a panel of three federal judges threw out nine indictments after examining a prosecutor's conduct; the first James Comey case, where a magistrate judge reviewed the grand jury presentation and found a series of mistakes; grand juries that refused to indict in matters involving Letitia James and six Democratic lawmakers; and the case of Lori Reid, where three separate grand juries refused to indict.
The authors list reforms supported by the American Bar Association and the National Association of Criminal Defense Lawyers. These include allowing witnesses to have counsel in the grand jury room, letting targets testify, requiring prosecutors to present evidence that points toward innocence, barring hearsay, providing grand jurors with independent counsel, recording full transcripts, and raising the standard above probable cause.
Read the full commentary on amNewYork
This page is a summary prepared for robertsimels.com. The full commentary was published by amNewYork and remains on amNewYork's site.
Robert Simels. Robert Simels hosts the podcast Injustice for All and serves as a consultant on criminal justice matters. He is no longer practicing law.
Bennett L. Gershman. Bennett L. Gershman is a distinguished professor at the Elisabeth Haub School of Law at Pace University.
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