Posted on: Sunday, February 10, 2002

COMMENTARY
Year on grand jury duty discloses flaws in legal system

By John Griffin

First of all, I can't tell you about specific cases that came before us during my recently completed year on the state grand jury. We took a permanent oath of secrecy.

Honolulu Prosecutor Peter Carlisle wants to streamline the legal system. Advertiser library photo • Feb. 1, 2000

That said, showing up at the Circuit Court building for a day every other week for a year left me with some pleasant feelings about civic duty.

Like fellow jurors I talked with, I wouldn't want to do it again soon, but I'm glad for the experience. Our very mixed panel of 16 got along well, and learned about other people and the judicial system. Judges and court clerks make you feel appreciated.

Still, something often was missing in the cases before us.

In part, that's because, unlike a trial jury that decides guilt or innocence, a grand jury's job is only to determine if there is probable cause to bring the accused to trial. You are mostly a warmup act.

But in addition, the venerable grand jury system embedded in the U.S. and state constitutions has evolved to the point where a noted former judge famously commented that "a good prosecutor can get a grand jury to indict a ham sandwich." (In Hawai'i, I would make that a musubi.)

Grand jurors hear only the government's side of the case, and only enough of that to get an indictment vote. The grand jury is, as one former prosecutor puts it, "an accusatory body."

Jurors can ask questions of witnesses, but few of our group ever did. I asked the most, but they were usually journalist questions trying to find "the story," not to bring out vital legal facts. By my count, our panel handled some 125 cases over the year and returned indictments in all but one or two of them.

(As well as indicting, grand juries also can have an investigative function. This is potentially of great power and importance, and I'm told it is more useful on the federal level. But in my limited experience — one or two cases before us — it added up to another tool for prosecutors.)

Around the country, reform groups, most often defense attorneys, have proposed changes in both the federal and state grand jury systems. (You can find such "grand jury Bill of Rights" ideas on the Internet.)

Most proposals would give the accused more access and representation in the system, and require prosecutors to present exculpatory evidence. Some of this seems reasonable. But we could also end up with a system that provides the expensive equivalent of two trials.

Honolulu Prosecutor Peter Carlisle is again proposing to the Legislature something that goes in another direction. He would amend the state Constitution, which in felony cases now requires a finding of probable cause by a grand jury indictment or a preliminary hearing before a District Court judge.

Instead, he wants to add a system called "Direct File" as used by 10 other states. Usually that means a county prosecutor or state attorney general reviewing police and other reports (including any evidence that tends to clear the accused). If the prosecutor feels there's probable cause, he takes the case to a judge, who decides if a trial is warranted. As under the present system, the defense would be allowed to challenge the probable-cause determination.

Carlisle has a less-controversial point in also proposing that the number of witnesses required before the grand jury be drastically reduced. In most cases, one investigating police officer with reports of testimony by others can present all the evidence needed. Such a single witness with official reports is enough in 37 states and in the federal system.

I must say Direct File has some initial appeal for me after a year of often feeling like a rubber stamp in a grand jury process that took so much time and money for seemingly little results in terms of justice for all. There has to be a better way.

Still, Carlisle's idea is opposed by the state public defender, the American Civil Liberties Union and others, who fear potential abuses by some less-scrupulous prosecutor with too much power. And the liberal in me is not sure the answer to abuses and shortcomings in the grand jury system is to bypass that system.

So for me, it comes down to this nonlawyer's view:

If we are going to keep the grand jury — and we should for murder, child molestation, grand theft and other major cases — we should improve and streamline the process.

Respected lawyers I talked with argue that you should have the same rules for all cases, that indictments are serious and can often ruin a person's reputation. Yet it still seems to me that many lesser felony cases, such as shoplifting, burglary, minor drug busts, etc., could be handled by judges, maybe even using some modification of Direct File.

All people may be created equal, but all crimes aren't.

Let them wrestle with that at the Legislature, where last year the Senate passed Carlisle's Direct File and witness bills but the House balked. The state judiciary, incidentally, has no position in all this, sort of an equivalent of taking the Fifth Amendment.

John Griffin is the former editorial page editor of The Honolulu Advertiser. He writes frequently for these pages.