What You Need To Know About San Diego County's Criminal Grand Jury

MAUREEN CAVANAUGH: Our top story on Midday Edition, the protests continue around the country against the grand jury verdicts in the Michael Brown and Eric Garner cases. The fact that the grand juries failed to indict police officers for the deaths of the two men, is evidence to some that the legal system is not working. But in fact, many legal experts have been complaining about grand juries because they say usually grand juries make it too easy for prosecutors to get an indictment. So are there serious flaws in the grand juries system, and if so, how can they be changed? I would like to my welcome my guests Marc Carlos is a San Diego Criminal Defense Attorney. Marc, welcome to the program. MARC CARLOS: Hi, how are you? MAUREEN CAVANAUGH: And Marjorie Cohn is profess of law at Thomas Jefferson School of Law. Marjorie, welcome. MARJORIE COHN: Thank you, Maureen. MAUREEN CAVANAUGH: Marjorie the U.S. is the only country that has an operating grand jury system, what's the purpose behind it? MARJORIE COHN: Well, originally the purpose was to prevent railroading of the defendant, but the problem is it has turned into a star chamber proceeding done in secret only the prosecutor and the grand jurors are present. So the prosecutor virtually always or almost always gets an indictment, presents just a bare boned case to show the jurors that there are probable cause, not beyond a reasonable doubt, but probable cause to believe that the target who becomes the defendant committed the crime and the grand jurors return the decision. So it is really the prosecutors show. MAUREEN CAVANAUGH: So back in the day a couple of hundred a years ago it was to prevent the monarchy to imprison people just on their whim, but as you say as far as your concerned it has turned to this rather dysfunctional arm of the justice system, is that right? MARJORIE COHN: Yes, in fact since only the prosecutor is present there is no cross-examination of the witnesses and there is no and there is no defense attorney present. I have actually, when I was a Criminal Defense Attorney, would sit outside of the jury room because I was not allowed in and told my client to come out each time there was a question and tell me what the question was and I gave a constitutional objection, no you can't answer that it violates your fourth amendment right, fifth amendment right and she would go back in and make that objection. MAUREEN CAVANAUGH: I'm going to ask you a couple of grounding questions about how a grand jury works Marjorie. First of all, what is a criminal grand jury? What is it supposed to determine? MARJORIE COHN: A grand jury is supposed to determine whether or not there is probable cause to believe that an individual committed a crime, and if that grand jury says there is probable cause which is a fairly low standard, then the case goes to trial and the trial is open and public with cross-examination and defense presents its case as well, that's how it works. MAUREEN CAVANAUGH: How are the jurors who serve on a San Diego County criminal grand jury selected? MARJORIE COHN: They are selected by the judges. MAUREEN CAVANAUGH: By the judges from the jury pool that everybody is in? MARJORIE COHN: Not necessarily. MAUREEN CAVANAUGH: Okay, from what then? MARJORIE COHN: They can select them from anywhere people in the community, whatever they want. Generally grand jurors are not representative of the community ethnically and economically. MAUREEN CAVANAUGH: And the same grand jury can hear more than one case, is that right? MARJORIE COHN: Yes. In fact, that is interesting because the grand jury in Ferguson had been sitting since May on several cases, they knew the drill that the prosecutor comes in and presents a bare boned case and asks for an indictment and they indict. So when the prosecutor of this case McCulloch handled this grand jury, the one with Darren Wilson so differently by just giving them three months’ worth of testimony and not asking for an indictment and really skewing the transcripts show a real skewing of the case to favor self defense by the officer and giving them an outdated statute that says he can use force whenever he wants to deadly force um, these grand jurors knew this was different and they were expected to act differently and they did act differently and in turn did not return an indictment. MAUREEN CAVANAUGH: Generally speaking, here in California Marjorie, what you have described already is that it is empanelled to hear, whether or not it is there, at least to hear if there is enough evidence to bring a defendant to trial a person accused of a crime to trial and nobody hears about the defense and what they might have to say about it. This is entirely the state’s case that is presented to the jurors, is that right? MARJORIE COHN: That is correct. It is done in secret. So the alternative way to get a case to trial is through the preliminary hearing. A prosecutor will file charges and go to a preliminary hearing and then try to convince the judge there is probable cause to believe that the defendant committed the crime. That's open and public the defense can cross examine and present evidence and that should be the gold standard when we have killings of especially people of color, but in general by officers they should go to a public grand jury I'm sorry public preliminary hearing. They should not go to a public grand jury. MAUREEN CAVANAUGH: Now, attorney Marc Carlos let me bring you into the interview if I may, I am getting from Marjorie that defense attorneys are generally not fans of the grand jury, is that right? MARC CARLOS: No, we are not. MAUREEN CAVANAUGH: And why is that? MARC CARLOS: The ultimate truth finder is cross examination. Anyone can go into a grand jury room and tell one side of the story without being questioned as to the veracity of the story whether it be you know their ability to perceive any substances they may have been under the influence of. All of that is important for a juror to determine whether or not to accept the credibility of that witness. So essentially what a grand jury does is it brings it into a room with a prosecutor who has been working with this grand jury for a period of time without any cross examination questions, which quite frankly would shed a lot of light on the testimony. In this particular case, the fact that you have a grand juror who it working with a particular grand jury over a long period of time they get to know the person, they might crack jokes with each other, they see each other. Without a defense attorney there to really kind of keep things in check the jury tends to go along with what the prosecutor wants to do. MAUREEN CAVANAUGH: Are defense attorneys even allowed into the chamber? MARC CARLOS: No. MAUREEN CAVANAUGH: With the grand jury? MARC CARLOS: No, the witnesses go and one of the things we talked about outside and we agreed on. I think that letting your client go into a grand jury and testify under any circumstances unless you knew something was going to happen ahead of time I mean I find that difficult to believe that this officer went in there without a lawyer and answered questions for four hours. MAUREEN CAVANAUGH: Because allowing a possible defendant someone accused of a crime to testify before a grand jury is not necessarily something at that a lot of defense attorneys would urge their clients to do? MARC CARLOS: No defense attorney would urge their clients to do that. MAUREEN CAVANAUGH: Okay. MARC CARLOS: Under any circumstances. The standard evidence is so low, probably it is just so low it doesn't make any sense to have your client make statements that are going to be used against him at trial. There is no benefit to putting your client in front of a grand jury. MAUREEN CAVANAUGH: Now, aren't there tactical reasons why a defendant would use a grand jury Marjorie in the sense that if you go to a preliminary hearing the defense hears a lot of your case that perhaps you would not want the defense to hear before you go to trial? MARJORIE COHN: If there is an indictment the defense gets a transcript of the grand jury proceeding. One of the reasons why I think the reason why McCulloch, the prosecutor in Saint Louis, wanted a grand jury was because he wanted to pass the buck. He didn't want to bring charges. He wanted to pass the buck to the grand jury. So he went to the grand jury and structured it in such a way including leading questions to the officer isn't it true you were doing this and that and that would support yourself defense claim and just before he testified one of the assistant district attorney handed out an old outdated statute on self defense on reasonable use of force by the officer and gave that to the grand jurors to set the context for the testimony of the officer and that statute would allow the use of deadly force in many more instances than the Supreme Court said was allowable. Several weeks later the prosecutor said well that statute was it doesn't agree with Supreme Court law and one of the jurors asked the prosecutor does the Supreme Court take precedence over Missouri law and the prosecutor refused to answer. So it was really skewed in favor of the officer and away from getting an indictment from the beginning, the prosecutor didn't have to take the heat for deciding not to indict him. He left that to the grand jury but manipulated in such a way that there was no indictment. MAUREEN CAVANAUGH: Another thing we have heard about that Marjorie is the prosecutor in the case of Michael Brown did not actually suggest any charges to the grand jury. In other words, I would like you to come back with an indictment on that charge or this particular charge. He left that up to the grand jury as well. MARJORIE COHN: That's my understanding, whereas it virtually every other grand jury proceeding the prosecutor comes in and presents enough evidence to show probable cause and then asks the jury to indict on a particular crime. MARC CARLOS: They actually give a statement and a closing argument during their grand jury proceedings. So they would say: "I would like you to return this finding based upon what we presented..." MAUREEN CAVANAUGH: So there are differences in grand jurors from state to state. The number of grand jurors involved, I believe, we have 23 here in California is that correct, Marjorie? MARJORIE COHN: We do, yes. MAUREEN CAVANAUGH: And in California do you need a unanimous decision from the grand jury to indict? MARJORIE COHN: No, you don't. MAUREEN CAVANAUGH: Again, and you didn't in Missouri, although that grand jury is smaller. The number of jurors on that grand jury is smaller in Missouri. Now, Marc, as a Criminal Defense Attorney here in San Diego. We have been looking at the numbers and it doesn't seem that there are too many cases that are actually brought to a grand jury in San Diego County would you agree with that. MAUREEN CAVANAUGH: MARC CARLOS: I would agree. There are two aspects: There is a federal side and there is a state side. The U.S. attorney primarily uses the system to get an indictment against the individuals charged in federal court. In state court, in the county prosecution, it is rare. 27 years of criminal defense, I have seen four of my cases which are indicted. So that's MAUREEN CAVANAUGH: Of those cases, what has been your impression of this system actually having been involved or perhaps having a client I don't know testify before a grand jury, have you ever had that happen? MARC CARLOS: Never! MAUREEN CAVANAUGH: Never. MARC CARLOS: That is never going to happen with any of my clients. Any criminal defense lawyer that I know, that is not going to happen, but I have been involved in two here in San Diego County the two political prosecutions. The Sweetwater case I represented Pearl Quinones, and then also Councilman Steve Castaneda also in South Bay was a grand jury case. So it seems they are using cases they use cases which have significant amount of discovery, complicated legal issues that they don't want to take in front of a preliminary hearing, which I believe I agree with Marjorie is probably the best way of seeing whether a case should go to trial or not. It is subject to cross examination. You know a grand jury indictment a grand jury proceeding is basically the prosecutor running through what they have and then agreeing and so you end up with non cross examined testimony, the problem we had in Sweetwater there was 57 volumes of transcribed testimony, all of which was not subject to cross examination making allegations against my client against other people in the case which were really untested and released to the public which I think is dangerous in and of itself. So once again, it depends on the type of case. What I can say here from what I have seen in San Diego County with the prosecutors involved with seeking the indictments have generally been relatively fair as far as that proceeding goes. But MAUREEN CAVANAUGH: Let me get a point of clarification, for a preliminary hearing there is no jury right? The case is made before a judge? MARJORIE COHN: Right. So there are two different ways to get to trial. One, is through a grand jury indictment and the other is through a preliminary hearing. MAUREEN CAVANAUGH: Right. MARJORIE COHN: Let me just give you a contrast between the two in the OJ Simpson case. It started out in the grand jury, the secret grand jury, but in an unprecedented move the judge disbanded the grand jury because of almost overwhelming publicity. OJ Simpson had a preliminary hearing which was really the key to his ultimate victory and acquittal because in that open televised preliminary hearing one of the officers Mark Fuhrman testified that he had not used the N word in the last ten years. Defense witnesses who saw that on television on national television came out of the woodwork and became the most effective witnesses saying, "Yes, he did. Yes, he did use the N word in this case and that case." It really benefitted OJ Simpson to have a preliminary hearing instead of a grand jury. MAUREEN CAVANAUGH: Marc, I wanted to follow up on something you said. You said that sometimes a good case would want to go before a grand jury would want to be one that involved a lot of complicated legal issues, wouldn't that actually be better to argue before a judge rather than a grand jury? MARC CARLOS: I said for the prosecution. MAUREEN CAVANAUGH: I see. MARC CARLOS: For the prosecution they want to do that. I never want to see a case before a grand jury because it doesn't make any there is no cross examination. I keep going back to that. Cross examination can you can get cases dismissed at the preliminary hearing where they won't go to a court, they won't go to a judge, and they won't go to trial. That's very important for our system. It basically drives the truth telling element for the witnesses and police officers and keeps everybody in check. Without it, we are stuck in cases like Sweetwater and cases like Steve Castaneda where we are stuck in it for months and months into a case and Castaneda's case we spent five or six week in acquittals, you know not guilty charges. Really, it shouldn't have gotten that far. Sweetwater we had hundreds and hundreds and hundreds of witnesses that testified and you know, I can't tell you how much discovery for what though in the end. MAUREEN CAVANAUGH: I do want to say for the point, again I want to clarify we did contact the San Diego County District Attorney's Office for this segment but no one was available to talk with us about it. Marjorie, finally is there anyway is there any movement to get rid of grand juries in this country? MARJORIE COHN: Well, they are in the constitution. That doesn't mean they have to use grand juries and some states use them and some don't. Some states use them in some cases and not in others, so we are not going to get rid of the grand jury as an institution, but it should be limited in what it is used for and as I said before, in cases where police officer kills an individual, especially a person of color there should never be a grand jury it should be an open public preliminary hearing with cross examination and both sides represented. MAUREEN CAVANAUGH: Any reforms you would like to see Marc in the grand jury system? MARC CARLOS: I can only speak I guess we are in San Diego. I feel like I should speak about San Diego County. MAUREEN CAVANAUGH: Sure, yes. MARC CARLOS: I sort of defending the District Attorney's Office in this case because they rely on the preliminary hearing which is very important to their office too. They don't want to waste time in trial for cases that they shouldn't go to trial on. So they have done a fairly good job from what I can tell, except for some of the cases that discuss in using the preliminary hearing and I think that should be the standard. I don't think they should use a grand jury for anything. It is up to the prosecutors. I don't feel they have abused it necessarily here in San Diego that I can tell. MAUREEN CAVANAUGH: Okay. I have been speaking with Marjorie Cohn of the Thomas Jefferson School of Law and Marc Carlos who is a San Diego Criminal Defense Attorney. Thank you both very much. MARC CARLOS: Thank you. MARJORIE COHN: Thank you, Maureen. MAUREEN CAVANAUGH: Coming up inconsistencies have put the credibility of a Rolling Stone expose on sexual violence in question. It is 12:21 and you are listening to KPBS Midday Edition.