How A Grand Jury's Indictment Is Indistinguishable From Being Found Guilty

from the there's-a-reason-no-other-countries-use-this-system dept

A recent post of mine took on grand juries, specifically the astounding fact that a North Carolina grand jury managed to crank out 276 indictments in four hours -- or roughly, one indictment every 52 seconds. Some commenters pointed out (correctly) that grand juries don't actually declare anyone "guilty." They just determine whether the prosecution has enough evidence to bring the case to trial.

But the system is still broken. Grand juries may not hand out guilty verdicts, but they do have the power to imprison people for an indefinite amount of time simply by indicting them. This is exactly what happened to Justin Carter, the teen charged with making terroristic threats after someone reported statements he made while trash-talking with some fellow League of Legends players. The Dallas Observer has been tracking this case (via Reason), and the phrases below are what have been termed "terroristic threats."

One of the comments appears to be a response to an earlier comment in which someone called Carter crazy. Carter's retort was: "I'm fucked in the head alright, I think I'ma SHOOT UP A KINDERGARTEN [sic]."

Carter followed with "AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN."
Carter was indicted by a grand jury based solely on these statements. (Police failed to uncover anything else damning after searching Carter's residence.) According to Carter's lawyer, the prosecutor presented the "threats" using a couple of screenshots wholly removed from context to the grand jury, which found these met the requirements of the "terroristic threat" charge.
But Flanary says that Bates presented a truncated version of the comments to grand jurors. They did not see "I'm fucked in the head alright, I think I'ma" before "shoot up a kindergarten." If this sounds like the nitpicking of a defense attorney, that's precisely the point.

"When you're dealing with speech," Flanary says, "... it is absolutely, 100 percent important that the words that you are charging people with are actually the words that they said and not some misrepresentation. And that's what ... this prosecutor did, is misrepresent to the grand jury what he said."
So, the grand jury indicted Carter and the prosecutor asked for $500,000 bail. Carter was jailed in February of 2013 (the first month of which he spent unindicted while officials sorted out jurisdictional issues), where he was beaten, raped, put in solitary for his own protection and placed on suicide watch. He wasn't released until July when an anonymous donor paid the bail.

How is that indistinguishable from being found guilty in court? A prosecutor presents only the evidence that will persuade the grand jury to indict and follows it up by asking a judge to set an exorbitant bail. For Carter, he may as well have been found guilty by a jury, for all the difference "it's only an indictment" made. Since his family couldn't afford the bail, Carter remained imprisoned, despite not having been found guilty of any crime.

Running 276 cases through in four hours is grossly irresponsible, and it put an unknown number of people into a position like Carter's -- jailed but still supposedly "innocent until proven guilty." For a large majority of Americans, a bail amount even 1/10th of Carter's $500,000 is unaffordable. Once indicted and with bail set above what they can afford, they are jailed until they can go to trial and finally start exercising their due process rights, which can often be months after the indictment.

I understand the bail process is in place to help prevent the accused from simply fleeing the country, state or whatever and avoid "justice," but this combination of grand juries and aggressive prosecution seeking excessive bail amounts turns the system into "guilty until proven innocent."

That's not how the system is supposed to work. You're not supposed to be indicted, jailed indefinitely and then finally allowed to face your accusers and a jury of your peers, if and when that date arrives. Grand juries subvert the criminal justice system, turning the merely accused into de facto criminals, indistinguishable from the other prisoners except for the fact that many of their new "peers" have likely had a chance to avail themselves of their constitutional rights.



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  1.  
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    kenichi tanaka (profile), Feb 14th, 2014 @ 6:51pm

    I have to agree that the prosecutor in carter's case misrepresented the comments that Carter had made. While, technically, he did make the comments, what the prosecutor presented to the grand jury was misleading as it didn't give the grand jury the full comment and the context in which it was said.

    Where this prosecutor is concerned, while I don't know the full context of law, he created what can be explained as reversible error and made the grand jury complicit in the mad dash to get an indictment.

    This is how innocent people get convicted because over-zealous prosecutors play games with grand juries in order to get their indictments. If the grand jury had been given the full context of the comment, as the prosecutor in this case was well aware, the grand jury would never have indicted.

     

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    Paul, Feb 14th, 2014 @ 6:58pm

    Grand Juries are just like Juries

    Grand Juries are the people who just don't have anything else to do. I do agree, they have become rubber stamps and now fail to do the intended role. But our entire system more or less fails at this point.

     

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    Nina Paley (profile), Feb 14th, 2014 @ 7:36pm

    Grand Jury = Milgram Experiment

    I was forced to sit on a Grand Jury once, wrote about it here.

     

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    Anonymous Coward, Feb 14th, 2014 @ 8:31pm

    Harsh Judgement

    Look what happened to this kid, over nothing but words.

    Ask yourself again... did America Deserve a 9/11 from a philosophical point of view?

    We sit in the lap of luxury that even kings 100 years ago could not afford and allow out of control law enforcement to SHIT straight down the neck of Liberty, while authorities no only allow, but approve these actions as America looks on in apathy.

    Some say... In war there are no innocents... because if you do not protest the 'evil' actions of your government then you need to consider if that is enough to make it look as though you support the 'evil' it commits. Keep these things in mind as you vote/support your next/current congress critter.

     

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    John Snape, Feb 14th, 2014 @ 9:43pm

    An idea...

    I think we should have the judge ask the jury if they thought bringing the case to trial was a waste of time. If they say yes, the prosecutor who brought the case to the grand jury should do the time the defendant spent in jail before the trial.

     

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    Anonymous Coward, Feb 14th, 2014 @ 10:23pm

    Re: Harsh Judgement

    Did you seriously just ask if we deserved 9-11 because someone was wrongfully imprisoned? Are you demented? 3k people were killed who had *fuck all* to do w/ anything in this article, and you're asking if we deserved it???? I take it back: you're fucking *insane*, not just demented.

     

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    G Thompson (profile), Feb 15th, 2014 @ 12:19am

    Ah yes the USA Grand Juries...

    Basically indistinguishable from Star Chambers and why their so called evidence is inadmissible in any court anywhere else on the planet.

    Interestingly though the protections against self incrimination in the US's Fifth Ammendment were implemented to nullify the inquisitorial ability of Star Chambers.

    Oh but "grand juries' are different. people say.. BULLSHIT! they are basically an absolutely inquisitorial process that removes due process, procedural fairness, transparency and the ability to be represented FULLY by counsel and not forget the fact that exculpatory evidence is NEVER shown because the prosecution is all powerful and the leader of proceedings .. ie: a Star Chambers or Kangaroo court.. take your pick

     

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    David, Feb 15th, 2014 @ 1:17am

    And now for something completely the same

    Carter was jailed in February of 2013 (the first month of which he spent unindicted while officials sorted out jurisdictional issues), where he was beaten, raped, put in solitary for his own protection and placed on suicide watch.

    Well, here is a point of the "justice" system that is even more broken than grand juries. The purpose of jail time is atonement and reintegration. Not being cast in a lawless zone governed by "survival of the fittest".

    How are inmates supposed to value the rules of society in an environment where they are shown that only the worst criminals will thrive?

    Most of them will have a felony record afterwards and not be eligible for congress anyway, so why train them for it?

     

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    Anonymous Coward, Feb 15th, 2014 @ 1:36am

    Ironically Enough

    Grand Juries were supposed to be a check against prosecutor abuse and overreach. So much for that idea.

     

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    Anonymous Coward, Feb 15th, 2014 @ 1:42am

    These sorts of cases will never go away until prosecutors know they can FACE JAIL TIME for pulling such dirty tricks. As long as they have any sort of immunity to prosecution for their own crimes, prosecuted in other courts they have no influence over, why should they care?

     

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    JMT (profile), Feb 15th, 2014 @ 4:10am

    Re: Re: Harsh Judgement

    "Did you seriously just ask if we deserved 9-11 because someone was wrongfully imprisoned?"

    No, he didn't. Learn to think a little harder about what you're reading before shooting your mouth off.

     

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    scotts13 (profile), Feb 15th, 2014 @ 5:27am

    Not so simple solution

    Can anyone think of a way where prosecutors do NOT advance their careers by getting convictions? That's the crux of it; and I'm beginning to think under-motivated prosecutors would be better than over-zealous ones.

     

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    David, Feb 15th, 2014 @ 5:40am

    Re: Harsh Judgement

    Look what happened to this kid, over nothing but words.

    He got indicted. There is not much I see wrong with that.

    He got his life and mental and physical integrity fucked over because of getting indicted.

    And there is hell of a lot wrong with that. An indictment is not a verdict and is not supposed to be connected to punishment.

    In countries with a functioning judicial system, an indictment means you have to appear before court eventually. In extreme circumstances, when you are a potential danger to the public, it may mean being locked up until trial, with recompensation getting paid if the trial determines that the respective charges were meritless.

    Now in this case, there was the claimed danger of a killing spree. Bail was set at $500.000. That's absurd. The main idea of bail is to keep a suspect from disappearing before trial.

    Why would a 16-year old pupil disappear before trial? Makes no sense. If you are afraid that he'll go on a killing spree, you don't set bail. There is no way that an outstanding bail will keep somebody from running amok.

    So the message of the prosecutor and/or judge is "for $500000, I am ok with the suspect shooting up a kindergarten". Either that, or "we don't believe this to be of merit, but we'll fuck you over it anyway".

    In short, lynch justice, outside of a proper trial, and in full knowledge of not being related to an actual crime. Just behavior the prosecution and court don't like.

     

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    jebradley (profile), Feb 15th, 2014 @ 7:27am

    Unfortunately, to the lawyers, it's a game

    It is just a game to the attorneys. They are not interested in finding the truth. They will ask direct questions to try to lead a jury to the conclusion that they want. Evidence is sometimes suppressed to prevent the other side from "winning."

    I have a friend that was an elementary school teacher. He was jailed for inappropriately touching a student. When the prosecutor realized that they didn't have any evidence, they delayed things, and told my friend that their trial would take place in a couple of years and offered a plea bargin of assault with probation.

    When you actually hear the facts, the girl's mother had told her that if anyone 'touched her' and she didn't want them to, to tell one of her teachers. The other teacher immediately reported it. What it ultimately came down to was that my friend touched the girl's shoulder when he was talking to her. The prosecutor didn't want to come out and say that they'd screwed up after they'd had front page news about a teacher molesting a child, so they did their delay tactics. No prosecutor is going to plea bargin a child molestation case to an assault if they have evidence of the individual being a child molester.

     

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    Anonymous Coward, Feb 15th, 2014 @ 7:54am

    Re: Re: Harsh Judgement

    Re: Harsh Judgement
    Did you seriously just ask if we deserved 9-11 because someone was wrongfully imprisoned? Are you demented? 3k people were killed who had *fuck all* to do w/ anything in this article, and you're asking if we deserved it???? I take it back: you're fucking *insane*, not just demented.


    The question is intended to make people think. But if you think I am insane why bother to response to the question?

    Perhaps you can tell us at which point you feel that a nation would be guilty of its actions?

    How much suffering do you think Germany's innocent suffered during and after World War II? Go and read up on that and tell me who is insane?

    How about the suffering of the People in North Korea?

    What has the US been doing in the middle east for the past 50 years... meddling... meddling so damn much that they hate the shit out of us... which is why secret politics and secret diplomacy always ends in failure.

    Now do I believe we deserved 9/11? No I don't because our government keeps this shit relatively secret from us. But here is a kicker... if another happens, now that we are all well aware of how nasty the US has become, I can't say that we can consider ourselves all that blameless.

    After 9/11 happened we voted in a terrorist that is actually trying to justify drone strikes against Americans without due process. Based on the behavior of the left they may not say it, well some have, but they seem to really believe we deserved it. So as long as there are people how there who think we do, then the question must be asked? Why?

     

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    Anonymous Coward, Feb 15th, 2014 @ 8:21am

    Solution is simple: nifong the prosecutor.

    Make him personally bankrupt.

     

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    Anonymous Coward, Feb 15th, 2014 @ 8:38am

    Re: Not so simple solution

    Can anyone think of a way where prosecutors do NOT advance their careers by getting convictions?
    Currently, there is effectively no penalty for failing to secure a conviction. They do not even really suffer from the lost time, since other cases are just on hold if the prosecutor is too busy to respect the speedy trial right of all the accused. Start with applying weights, such as decreasing the career value of a conviction if the prosecutor sat on the case long after the defense was ready to proceed. This makes prosecuting minor crimes have zero or negative value quickly. Next, add a negative career penalty for cases where the evidence was very weak or relied on misleading presentation. Rewarding prosecutors for securing convictions is not inherently bad, but I think we want to place greater emphasis on the quality of the cases, rather than the quantity. Getting a conviction for a crime with a clear victim serves society better than getting multiple convictions on victimless crimes (e.g. threatening statements that the accused could not plausibly have acted on).

     

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    Trails (profile), Feb 15th, 2014 @ 9:53am

    Re: And now for something completely the same

    I'm with you on this.

    There's a LOT wrong with north american justice.

    A half a MEEEEELLION dollars bail seems ridiculous unless the judge really thought the kid was a flight risk, but IMO that would need to be substantiated by more than "ZOMG 9/11 + he was mean on teh intarwebz".

    As you point out, the idiocy of the North American penal system, which tends to brutalize and criminalize people, is an MCF (Mongolian Cluster Fuck).

    Even if one puts aside the rights of the incarcerated (not advocating such, but for sake of argument), society is benefited by rehabilitation rather than the Lord of the Flies stuff that happens now.

    Being selfish for a minute, having this kid brutalized and making him more likely to arm himself and lash out since he (correctly) perceives that his world is a fucked up and dangerous place, is worse for ME, and doing countless times to people indicted for non-violent offenses is significantly worse for me. My point is that the "law & order" stumping for "tougher penalties", when criminal "justice" is as it is actually begets crime.

     

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    kenichi tanaka (profile), Feb 15th, 2014 @ 10:40am

    Federal Grand Juries only serve to determine if there is enough evidence to go to trial. They don't determine guilt or innocence of the accused but only if there is enough evidence.

    The thing is, prosecutors only get one bite at the apple with grand juries. If a grand jury doesn't return with an indictment, I don't know what the procedure is, but any judge can refuse to allow a prosecutor to resubmit to the grand jury if they feel there is nothing changed in the prosecutor's desire to go back to the grand jury.

     

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    Anonymous Coward, Feb 15th, 2014 @ 11:28am

    Re: Harsh Judgement

    "Some say... In war there are no innocents"

    ... and those that say this are either ignorant or attempting to justify their actions.

     

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    Anonymous Coward, Feb 15th, 2014 @ 12:07pm

    The answer is -

    to hold politicians responsible for the actions of the people in their districts. Then we will see a flurry of assholes and elbows to reform the laws and justice system. Sound fair to you?

     

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    JMT (profile), Feb 15th, 2014 @ 5:25pm

    So where are all the detractors from Tim's previous article telling him he didn't know what he was talking about? They seem awfully quiet this time around. Must be a bit harder to defend the legal theory when a bit of reality is thrown in.

     

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  23.  
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    Anonymous Coward, Feb 16th, 2014 @ 6:35am

    Re: Re: And now for something completely the same

    People are not supposed to be jailed unless they are convicted of a crime. In cases where there is a high risk that the defendant will harm the public before the trial, a judge can deny bail. Obviously, there wasn't enough evidence to justify denying bail on these grounds or the judge would have done that. What there was a high likelihood of was the defendant lambasting the prosecution and possibly the court on web where the story would bounce around stirring up the ire of the public. Bail is supposed to ensure that a defendant returns to court to face the charges by requiring a substantial amount that would be forfeited if the defendant fails to return. It is not supposed to be a tool for censorship by the court. Yet by setting a bail that is almost impossibly high for the defendant to meet, that is exactly how it is being used. It's a way of denying bail without actually denying bail. This is why we need the ability for a defendant to challenge the amount set for bail based on an indigency claim.

     

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    Anonymous Coward, Feb 16th, 2014 @ 6:45am

    Re: Unfortunately, to the lawyers, it's a game

    Defense attorney's, for good reason, have the ability to withhold evidence and/or present it in the most favorable light. The 5th amendment is a testimony to this. I suspect many prosecutors feel that this grants them the justification for doing the same as it would be an unfair advantage for the defense especially since they are also saddled with the burden of proof.

     

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    Anonymous Coward, Feb 16th, 2014 @ 6:58am

    Re:

    I still believe grand juries are a necessary part of the process, however the system definitely needs improvement to fix these sorts of problems. We need distinct limits on the the length of time a person can be held pending an indictment. Maybe we need an advocate that reviews the prosecution's presentation of the evidence before the grand jury to make sure it isn't misleading. As I said above, we need a means for a defendant to challenge impossibly high bail settings based on an indigency claim. I don't think the answer is to get rid of grand juries altogether as to do so removes any possibility of a weak case being throw out before the defendant is subjugated to a costly and harmful trial process.

     

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    Anonymous, Feb 16th, 2014 @ 6:59am

    Awwww, now what could a fine, morally-upstanding, God-fearing nation like little ol' innocent America, which has always kept its nose in its own business and has never harmed anyone, possibly have done to deserve something like 9/11?

     

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    Anonymous, Feb 16th, 2014 @ 7:02am

    And just for the record, I don't believe a word of the government's official 9/11 story.

     

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    Anonymous Coward, Feb 16th, 2014 @ 7:02am

    Re: Re: Harsh Judgement

    The bail was set to deny bail without actually denying bail and the reason was to censor him from speaking out about it before it went to trial.

     

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    Anonymous Coward, Feb 16th, 2014 @ 7:11am

    Re: Re:

    Perhaps we also could use these two things as well. Perhaps, we make it such that evidence not presented to the grand jury can not be introduced by the prosecution unless it is discovered after the indictment. Also, maybe we should give the grand jury the ability to determine what evidence the prosecution is allowed to present. If a prosecution introduces evidence that the grand jury determines is misleading, they can the bar the prosecution from using that evidence at the trial.

     

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    art guerrilla (profile), Feb 16th, 2014 @ 7:26am

    Re: ...and ? ? ?

    ... and ? ? ?

    and -sadly- the conclusion is: we DON'T have a functioning justice system...
    Per-i-od...
    (just to make sure: we have a SUPER-HIGH-functioning injustice system, IF YOU ARE THE STATE or 1%-er...)

    the media is broken,
    the gummint is broken,
    the justice system is broken,
    and us 99% are broken and broke...

    are we going to fix a broken system made immune to fixing by fixing a broken system which is immune to fixing by a broken system immune to fixing... ? ? ?
    ( ad infinitum )

     

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  31.  
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    Anonymous Coward, Feb 16th, 2014 @ 10:33am

    Re: Re: Re: Harsh Judgement

    Yeah, blame the voters.
    That is such a lame attitude.

     

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    Anonymous Coward, Feb 16th, 2014 @ 10:36am

    Re: Re: And now for something completely the same

    which tends to brutalize and criminalize poor people
    ftfy

     

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    Anonymous Coward, Feb 16th, 2014 @ 10:37am

    Re: Re: Not so simple solution

    "Currently, there is effectively no penalty for failing to secure a conviction"

    Yup - how many bankers have been to trial much less convicted?

     

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    Anonymous Coward, Feb 16th, 2014 @ 10:41am

    Re: Re: Unfortunately, to the lawyers, it's a game

    " it would be an unfair advantage for the defense especially since they are also saddled with the burden of proof."


    I thought it was "The People Against so_in_so", not the prosecutor against so_in_so. I would assume that "The People" would be more interested in the facts and the truth rather than suppressing evidence in order to put someone in jail regardless of their guilt.

     

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    Anonymous Coward, Feb 16th, 2014 @ 10:58am

    Re:

    It was the lizard people - they conspired to enact the entire thing

     

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  36.  
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    V, Feb 16th, 2014 @ 11:47am

    While grand juries in theory are a great idea, i.e. a check on the prosecutors' ability to bring charges, in practice they are horrifying.

    A list of problems with the grand jury system (in the US at least):

    1. Grand jurors are not screened for bias or other improper factors
    2. There is no requirement to provide any instruction on the law (and thus rarely occurs).
    3. The prosecutor is not obliged to present evidence in favor of those being investigated (and thus rarely, if ever, occurs).
    4. There is no right to counsel
    5. There is no obligation to inform the accused that they are being accused, even if they are being called to testify before the grand jury. (This is supposedly to prevent people from fleeing if they know they are being investigated.)
    6. There is no Fifth Amendment right regarding self incrimination, and witnesses and/or the accused can be held in contempt if they fail to appear or refuse to answer questions.
    7. Testimony provided in the grand jury room can be used at trial. Therefore even if you can't be forced to incriminate yourself at trial, they can use your testimony before the grand jury as evidence.
    8. Everything that proceeds in the grand jury room is sealed and secret unless the PROSECUTION wants to use it at trial. The defense does not get access to it otherwise. Note: This is to supposedly protect people who are accused but not indicted. However, there is no reason keep this secret once an indictment has been secured, except that is advantageous to the prosecutor to keep it secret.
    9. Illegally obtained evidence is admissible in grand jury proceedings, e.g. items found during an illegal search.

    These issues need to be addressed or the grand jury needs to be abolished. Some have argued that abolishing the grand jury would eliminate the little bit of protection that they provide on the few cases that they choose not to indict. Possibly. However, I believe that if every case had to go to trial, the prosecutors would dump many of these ridiculous cases, just due to case load.

     

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  37.  
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    Anonymous, Feb 16th, 2014 @ 4:58pm

    Re:

    Government itself needs to be abolished.

     

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    james cook, Feb 16th, 2014 @ 5:45pm

    Grand Juries are very similar to regular juries

    Often times, Grand Juries are the people who just don't have anything else to do. I do agree, they have become rubber stamps and now fail to do the intended role. But our entire system more or less falls apart at this point. We should reevaluate the structures of this system and see if we can't find a better solution for these problems.

     

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    Tom D Perkins, Feb 16th, 2014 @ 6:37pm

    Fixing Grand Juries

    Among the chief things required to fix the grand jury system is to take the away from prosecutors. Return to Grand Juries being regularly and openly empaneled, with perjury charges attaching to any testimony/evidence given them. Privacy is to be at the behest of the accused, not the state, with no indictment proceeding unless conviction seems plausible and in the public interest.

     

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    Anonymous Coward, Feb 17th, 2014 @ 7:37am

    Re: Re:

    I assume your recommendation would be to replace it with corporations, you know - privatize everything.

    I'm sure this would work out just fine, do it for the lulz.

     

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    David, Feb 17th, 2014 @ 8:01am

    Re: Re: Re: And now for something completely the same

    which tends to brutalize and criminalize poor people


    They should have thought of that before doing whatever made the prosecutor want to turn them into his plaything.

    If you don't recklessly want to invite your own rape, you better make sure to be born with both a penis and a silver spoon.

     

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    Rick Caird, Feb 17th, 2014 @ 9:37am

    Re:

    If you want to fix these problems, take sovereign immunity away from all government employees for misconduct or misrepresentation.

     

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    Mike Mahoney, Feb 17th, 2014 @ 4:05pm

    Grand jury

    The grand jury was supposed to be OUR check against prosecutorial misconduct and official misconduct. We let it get away from us. Take the G/D thing back.
    We are the judge of the law and the facts. The law includes all those arcane and funny rules of court procedure. Monkey wrench their game. Do not follow the law when the law does violence to justice.

     

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    Anonymous, Feb 17th, 2014 @ 4:18pm

    Re: Re: Re:

    No, my recommendation is anarchy.

     

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    Pragmatic, Feb 18th, 2014 @ 12:59am

    Re: Re: Re: Re:

    Anarchy => power vacuum => authoritarian control. You weren't very good at history, were you? Anarchists lead the charge, then are pushed aside or eliminated so the new leaders of the revolution can take over and consolidate their power.

    See every revolution for details. So... what are your plans to prevent that from happening this time around?

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Anonymous, Feb 18th, 2014 @ 3:08pm

    Re: Re: Re: Re: Re:

    Phagmatic, I gave up on you long ago.

     

    reply to this | link to this | view in thread ]


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