Amendment V – United States Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…
Taking the Fifth (and Sixth)
Americans usually have a pretty good idea about their rights in the criminal process. Embedded in our media, in every “cop show”, we hear the almost medieval chant:
“You have the right to remain silent, if you give up the right to remain silent, anything you say can be used against you in a Court of law. You have the right to an attorney, and to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the Court. You have the right to have questioning end at any time.”
We call them the “Miranda Rights”, after the Supreme Court case Miranda v Arizona that required the explicit reading upon arrest or identification as a criminal suspect. And even grade school students know the phrase, “I’ll take the Fifth”, the right to not testify against yourself, guaranteed in the Constitution. As a high school Dean of Students dealing with discipline, I often got that “teachable moment” to explain when the Fifth might apply to high school students, and when it didn’t. The Government Teacher in me came out, even if the kid on the other side of the desk just wished I’d write the suspension papers and be done with it!
Grand Jury
Just as important in the Fifth Amendment is a procedure called the “Grand Jury”. The Founding Fathers, only a few years past the American Revolution, worried about the power of the Government over “regular” citizens. They looked to English Common Law that gave those citizens two separate opportunities to check the Government. One is familiar to most: a trial by jury. Every person accused of a crime has the right to a trial, where a jury “of their peers” determines guilt “beyond a reasonable doubt” by unanimous vote.
But the authors knew that forcing folks to stand trial was an arduous and expensive process. Even if the accused was found “not guilty” it still altered their lives. So they placed a second standard, where “regular citizens” determine if there is even enough evidence to bring a case to trial. That second Jury is called the “Grand Jury”. They hear just the government’s side of a criminal case. If, after that evidence is presented, this jury determines that it is “more likely” that the crime was committed by the accused than not, then an indictment is issued. That formally charges the accused and brings them to trial. If the jury decides that the government doesn’t reach that low bar of “more likely”, then the jury votes a “No Bill”, meaning that the charges are dropped.
Ham Sandwich
There is a legal “joke” that says, “(A) grand jury could indict a ham sandwich”. It recognizes that the prosecutor controls all of the information that the Grand Jurors hear. Any “good” prosecutor should be able to present that evidence, without contradiction, to convince the jurors to bring an indictment. Grand juries don’t even have to be unanimous. Federal grand juries require twelve of sixteen jurors to agree. Here in Ohio it’s seven out of nine.
Unlike trial juries, Grand juries can ask witnesses questions, and can even get more information by issuing subpoenas requiring folks to appear before them. But, like trial juries, in the end a grand jury deliberates in secret, away from prosecutors and court recorders. They decide through private discussion and vote whether the “more likely than not” standard leads to indictment.
I have the privilege of serving on the Grand Jury here in Licking County. Every person accused of a felony must have their “case” heard by “us” first. Unlike a regular jury, we serve for three months, once a week, to hear all of the felony charges. If you read about a criminal arrest in the local paper on Friday, the Grand Jury is likely to hear those charges next week. If the charges are “dropped”, then the accused is released from jail. But if the Grand Jury indicts, then the process to trial continues.
Due Process
In every case, the prosecutor brings witnesses. They lay out the evidence and convince the jurors “more likely than not”. Often it’s the arresting officers, and the victims of crime who testify. It’s an eye-opening experience for jurors. I can now identify the difference between meth, crack, coke and fentanyl, and even how much is for “personal use” or is “bulk for sale”. Unlike a jury trial where the proceedings are public, the Grand Jury is secret. The idea is simple. Someone’s reputation should be protected from accusation, until at least the “more likely than not” standard is applied.
The “paperwork” is seemingly endless. Each allegation is defined by the Ohio Revised Code, and the evidence needs to point directly towards that law. There is a significant different between assault, assault with a deadly weapon, assault with a vehicle, or specific forms of assault, like strangulation. All of this is carefully defined in law, and the application is determined by the Jury. It’s all a matter of “due process”. The process must be fair to the accused and guarantee that their rights are protected, even though there is no “defense” presented to the Grand Jury.
And while the vast majority of cases (we hear a dozen or more each week) are indicted, unanimously, there are some where jurors just aren’t convinced. There is the occasional “no bill”. Sometimes prosecutors just don’t meet their burden of evidence, or witnesses are so contradictory that it just doesn’t “make sense”.
And after our session, every indictment is “crossed checked” against the law. Every signature (and there’s plenty) is triple checked. Every change to a possible indictment is confirmed. And finally, the week’s efforts are reported out to the Common Pleas Court.
Jim Comey
Former FBI Director Jim Comey recently was indicted for lying to Congress. There is a lot of controversy about that charge. Was what he said over different Congressional testimonies contradictory? Was the contradiction intentional? From what we can gather, the Federal Grand Jury originally issued a “No Bill”, then, was presented more information and indicted Comey on two of three possible counts.
But yesterday, a government attorney admitted in Court that the indictment they presented was never actually heard by the Grand Jury. The “paperwork” was revised after the Grand Jury hearing. And the signatures on it, including the jury “foreman”, did not represent what they actually decided.
In essence, the government lied about what the Grand Jury said. And that lie has a single government signature on it: the newly appointed US Attorney Lindsey Halligan, in her first Federal indictment.
Soup Sandwich
Grand juries hear a lot of cases, in secret. In Licking County, the notes we take about each case are destroyed as soon as we vote. But the memories of how we decided aren’t. It would be clear to us, and surely is to the Federal Grand Jury in Virginia, if a decision was altered.
The Fifth Amendment is clear, the Grand Jury must decide between a ham sandwich and a soup sandwich. And if the Prosecutor ignores their decision, the Court has a clear remedy. The Comey indictment must be thrown out, with “prejudice”. The charges in this set of facts must be forever dropped. It’s the only way to make the message clear. Upholding the US Constitution is more important, even than the desire of Donald Trump to get “revenge” on Jim Comey.
