There’s a classic joke in legal circles about a doctor on trial for malpractice. The prosecuting attorney reads down a list of 12 men, pausing to ask if each was the doctor’s patient. Each time, the man admits that each was. Then the prosecutor asks, “And are these men dead or alive, doctor?” “Dead,” is the answer.
The jury gasps and seems ready to render a verdict. Then the defense attorney rises. “One question, please, doctor. “What were the ages of your patients?”
“A 100 and older. I specialize in geriatrics.”
The story about the doctor on trial for malpractice came to mind while reading an article by Gideon Lewis-Knaus. In it, he describes his experience while serving on a grand jury. (“A Grand Juror Speaks,” by Gideon Lewis-Knaus, Harper’s March 2014 pgs. 41-44.) What seems to have impressed him was that jurists on his panel were “encouraged, perhaps even pressured” by the district attorney to deliver an indictment against the person under investigation. (Ibid, pg. 41.)
Lewis-Knauses, apparently, is under a common misconception that grand juries are called when a defendant is on trial. That’s not the case. What’s on trial is the district attorney’s evidence that a crime has been committed. Since evidence is the issue, the suspect in the crime usually does not appear not does the defense attorney. Generally, the proceedings are secret. Sometimes the potential defendant is unaware of the proceedings. The intent in these cases is to prevent him or her from attempting to flee before a charge is filed. Sometimes, even if a grand jury indicts, the district attorney will refuse to go to trial. He or she knows that when a defense attorney is allowed to present contrary evidence, the indictment will fall apart. My story about the doctor accused of malpractice is a humorous example.
Lewis-Knaus is right to express his concern about grand jury proceedings, however. In 1988, while a county commissioner, I wore an article questioning its use. (“Grand Juries: Justice or Politics?” by Caroline Miller, 1988.) In it, I cited experts who outlined numerous abuses of the system involving decisions both to indict or not to indict. All the potential for corruption exist behind those closed doors: secrecy, one-sided evidence or evidence withheld, a suspect placed under a cloud with no defense.
Grand juries are not required. They are an extra layer inserted into the justice system and they serve the power and the pleasure of the district attorney at the taxpayer’s expense. Going to trial without the grand jury serves justice best. In court, the accused knows the charge he or she will face and has a right to an attorney. Going to court also preserves the public’s right to be informed about the circumstances of the case.