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Are grand juries needed?

January 11, 2015 at 6:00 a.m. | Updated January 11, 2015 at 6:00 a.m.

For some Americans, this year's "failures" of grand juries in St. Louis County and in New York City to indict police officers involved in the deaths of two African American men is a clear sign the grand jury process must be changed or abolished - at least at the state level.

State Rep. Brandon Ellington, D-Kansas City, wants Missouri voters to eliminate the grand jury, and has introduced a bill for lawmakers to consider, to place a constitutional amendment on next year's statewide general election ballot.

Missouri's Constitution places the grand jury in Section 16 of Article I - the state's Bill of Rights.

The language Ellington wants Missourians to cancel reads: "That a grand jury shall consist of twelve citizens, any nine of whom concurring may find an indictment or a true bill: Provided, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies; but when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime; and that the power of grand juries to inquire into the willful misconduct in office of public officers, and to find indictments in connection therewith, shall never be suspended."

Ellington is not alone.

A quarter century ago, Sol Wachtler - who was chief judge of New York State's judicial system, wrote in a New York Times column grand juries were wasteful and pointless.

However, he wrote: "I do not favor abolishing the grand jury entirely. As an investigative body, it has served us long and well.

"Cases will remain in which it will be desirable for prosecutions to proceed by indictment; they would involve organized crime, corruption by public officials or the necessity of testing questionable witnesses."

But, Judge Wachtler added: "Such cases will be in the minority."

The grand jury was brought over to this country from England, which established the process in the medieval ages (perhaps as early as 978 A.D.) - but abolished its use of the grand jury in 1933.

State Senate Judiciary Chairman Bob Dixon, R-Springfield, said the state's discussion should begin with the idea that "the grand jury is a protection for the people, and we need to recognize that knee-jerk reactions will do us harm."

He also noted "the best teacher is history" for people discussing the need and make-up of grand juries.

"If we look at the history of the grand jury in American jurisprudence - and why it was, finally, adopted from the English system - it was to protect as a check against the prosecutor (while the trial) jury is a check against the judge," Dixon said.

He expects some proposals about changes to grand juries will be assigned to the Judiciary Committee where, Dixon promised, "One of the things we will do is make sure that all of our discussions ... will be a full, fair and respectful dialog."

The U.S. Constitution requires a grand jury to approve a charge before someone can be tried in federal court, but it's only an option in Missouri and a number of other states.

Missouri law requires the grand jury to operate in secret, under the direction but not control of a prosecutor - and grand juries are not bound by many of the evidentiary and constitutional restrictions trial courts have.

Grand juries may examine witnesses in the absence of their lawyers - and without informing them of the object of the investigation. State law requires this group of citizens to "indict no one because of prejudice and to free no one because of special favor."

The oath grand jurors take in Missouri also asks them to not present anyone for "any hatred, malice or ill will: neither will you leave unpresented any one for love, fear, favor or affection or for any reward."

When votes are taken, only the members of the grand jury are in the room - even prosecutors are forbidden by law to be present during the vote, and state law says the panel members can't "testify or declare in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question," nor can they "disclose any evidence given before the grand jury, nor the name of any witness who appeared before them."

Grand jurors who violate those laws can be charged with a Class A misdemeanor crime. Those provisions are being challenged in federal court by the ACLU, on behalf of one of the members of the St. Louis County grand jury that decided not to indict police officer Darren Wilson for the Aug. 9 killing of Michael Brown in Ferguson.

Sen. Eric Schmitt, R-Glendale, is one of four practicing attorneys in the Senate.

"I think the grand jury serves a very important purpose," he said, "in the sense that, when evidence is being gathered to decide whether or not charges will be brought, the issues of confidentiality - that sort of closed structure is really important for getting at "What are the facts?' and "What were the circumstances?' for whether or not charges will be brought."

Sen. Kurt Schaefer, R-Columbia, also lawyer, once worked as a special prosecutor when he was with the attorney general's office.

He noted grand juries are important to the criminal justice system, because the panel's citizen members make the final decision about whether a charge should be filed.

"If people do away with a grand jury, all they're doing is creating the only option left (in state law), which is 100 percent discretion for the prosecutor on charging, or not charging, on an "information,'" he explained.

The information is another way of charging a person with a crime and is filed with the associate circuit court. It requires a judge - in Cole County, Judge Tom Sodergren - to determine whether or not there is "probable cause" for a defendant to be charged with a crime and have the case heard in the circuit court.

Although not required by state law, Cole County grand jurors also are told the "the volume of criminal litigation is such that the service of a grand jury is necessary for a speedy trial."

That's one of the main reasons Cole County Prosecutor Mark Richardson feels the grand jury is such a vital tool for prosecutors.

"Many times, they'll hear a couple hundred cases in their term," he said last week. "In cases where there is not evidence, the grand jury can weed those cases out.

"And for those cases where there is enough evidence, they get those cases onto the circuit courts quickly."

Richardson said in 2014 there were 215 people who appeared before the grand jury, either under subpoena or on a voluntary basis. There were 181 defendants who were indicted and six who were not.

Cole County had a grand jury in the 1990s and early 2000s, but it was suspended because of a dispute between then-Prosecutor Bill Tackett and the circuit court judges.

The Cole County grand jury was reinstated in January 2007 after Richardson took office and asked the court to order one.

Grand jurors serve six-month terms, but that can be extended if deemed necessary - which happened in St. Louis County with the grand jurors looking at the Brown case in Ferguson.

"The grand jury is like a trial run for the witnesses who appear before the jury, although the grand jury goal is to find whether or not their is probable cause in a case," Richardson said. "Many times at the grand jury level, the case will only have a few witnesses, but by the time it gets to trial there may be multiple witnesses testifying."

Richardson added: "I place such a great value on the grand jury because it allows citizens to be involved in the initial stages of our criminal judicial process.

"There are some rare occasions where they perform some investigative functions to determine if there is a case to go forward on. They can ask questions of witnesses and that can help to determine their credibility."

An example of the effectiveness of the grand jury, Richardson said, can be found in a case from 2008 where a Houston, Texas, man helped hide a Cole County girl from authorities, after he and the girl's mother took the child in an attempt to deny her father his custodial rights.

Christopher West was charged in 2009 with perjury and child abduction for the 2008 crime.

Bailey Vieth, who was 11 at the time, was hidden in a crawl space underneath the living room floor at the New Bloomfield home of her mother, Rebecca Albrecht.

West confessed to authorities that Albrecht had planned and arranged for her daughter to be removed from her father's custody, then West took authorities to the home and Vieth was found.

A hole cut into the living room floor for access to the crawl space had been covered with plywood and carpeting, and a sofa had been moved over it.

Albrecht and West had been subpoenaed to testify before the Cole County grand jury and, while Albrecht was testifying, West confessed.

In April 2009, a jury from Franklin County found Albrecht guilty of child abduction and perjury.

She later was sentenced to three years in prison on the child abduction charge, and to five years in prison for the perjury charge.


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