Wednesday, April 11, 2012

Grand jury rights for all

One of the last hold outs of the numerated rights guaranteed in the Constitution that haven’t been extended to every individual through the states is a grand jury.  It just might be time for that to happen.

The Fifth Amendment in the Constitution in part states:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…"
The original Constitution, before the 14th Amendment, was interpreted to be applied only to the Federal Government.  Before the 14th, the Supreme Court consistently allowed the states great leeway in the rights that they allowed and those that they did not.  But, the 14th Amendment changed all of that, well, most of it.  Speech, assembly, trial by jury and many other things that are taken for granted now, where not always allowed by the states. 

Now, in the Trayvon Martin case in Florida may be just the case needed to push the guarantee of a grand jury to the Supreme Court.
A special prosecutor was appointed by Florida’s governor to investigate the shooting death about two months ago of a 17 year old by a neighborhood watch captain.  News media following the case have reported that the special prosecutor appointed has never used a grand jury in her 25 year career.  In the last couple of days, she has stated that she will not be using a grand jury and the decision to indict will be her’s alone based the evidence.

Rallies and marches have taken place bringing nation attention to the case.  As a result, the news media has reported the various details about the case.  Many of the details released swung in support between the shooter and the victim.  For the observer, it has been confusing at best and impossible to follow at worse.  The need for a special prosecutor had become apparent from early on and the governor did the right thing in appointing one, if the move is honest, sincere and not politically motivated. 
There is no doubt that an unbiased, intelligent prosecutor could gather the evidence and organize it in a way that would make it easier to understand.  But, we do have checks and balances in our system of government. (Hey, in a nod to a previous post, the term “checks and balances” can’t be found in the Constitution.)  In every function of government, we need a process that checks the details and develops an opinion on the evidence from someone that isn’t invested in a particular outcome.  The special prosecutor will have an investment in the outcome, whether personal pride or political.  If a grand jury were to review the evidence and issue an opinion, the community could have a much better confidence in the outcome.

States though, don’t have to present evidence to a grand jury.  In many cases, prosecutors are allowed to study the evidence and issue an opinion to indict or not.  First, this is a situation where even though it isn’t a clearly stated right in the Constitution for states to call a grand jury, states should.  By adding the grand jury to state judicial systems that don’t use them now, everyone in the country can enjoy the same rights in their own state that were intended solely for our relationship with the Federal government.
Additionally, depending on the ultimate outcome, this could be the case that sets up a challenge.  The defendant, if the shooter is indicted, could appeal to the Supreme Court for protection under the Fifth Amendment.  The lawyers are on record of implying that to indict without a grand jury would be a mistake.  (Since the writing of this blog, the current lawyers have withdrawn from the case, but the issue of indictment without a grand jury is there.)

It would be better to just apply the wisdom of the Constitution to the states.  The confidence in the local community’s government would be so much greater.

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