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In the recent aftermath of grand jury “no bills” in Ferguson and Staton Island this article will discuss the historical evolution of the grand jury process from an Anglo­ American jurisprudence perspective to the modern day role of the grand jury in Maine and elsewhere. The purpose of this article is to provide a broad description of the foregoing to the laymen; it is not intended to be an in depth analysis for legal intellectual discourse.

Grand juries have been around for nearly a thousand years. In the early years, anyone from the Crown to an individual citizen could cause a criminal complaint to be presented to the grand jury. The role of the grand jury was to ferret out baseless criminal charges from meritorious claims that ought to proceed to an actual trial on the merits.

Today, although some American states still allow private citizens to initiate grand jury proceedings, that practice is exceedingly rare. The overwhelming majority of grand jury proceedings are initiated by government prosecutors who are legally required to do so in order to formally bring felony charges against an individual.

In Maine, as in Missouri and New York, state law requires as much. In all three states, the grand jury consists of 12 to 23 citizens. In order to return an indictment, a majority of the grand jurors must agree that probable cause exists to believe that the accused committed a specific crime.

By contrast, in a criminal trial before a traverse jury, the government must prove, beyond a reasonable doubt, that the accused committed a specific crime. Probable cause means that an objective, reasonable, person believes or thinks that the allegation is true.

That is the same standard of proof or belief that a police officer must apply when deciding to make an arrest. Proof beyond a reasonable doubt requires the fact finder (a jury or a judge) to conclude that the allegation is almost certainly true beyond and to the exclusion of all reasonable doubt, or as the United States Supreme Court has articulated: “utmost certainly”.

The Government Can Indict A Ham Sandwich


The government prosecutor is not required to allow the accused to testify, to present witnesses or to cross examine witnesses in the grand jury proceedings in Maine or elsewhere. The prosecutor is not required to present exculpatory evidence. There are no judges present. The entire proceeding is controlled by the prosecutor. That is why the common phrase “the government can indict a ham sandwich” is so often quoted.

In the Ferguson case involving the fatal shooting of Michael Brown, Officer Darren Wilson was invited to testify. Exculpatory forensic evidence was presented. The result was a “no bill” a declination by the grand jury to indict Officer Wilson and thereby send the case to a trial on the merits.

While we do not yet no all of the details surrounding the Staton Island grand jury proceedings in the case against officer Daniel Panteleo and his alleged criminal responsibility for the death of Eric Garner, the cases have several things in common and several uncommon aspects.

The common elements: Both cases involve a white police officer using extreme violence against black men. In both cases, the black men died during those violent confrontations. In neither case did the white officer suffer any significant injury. Both grand juries declined to indict. The similarities, the commonalities end there.

In the case against Officer Wilson, the Grand Jury was presented with overwhelming evidence, both forensic and eyewitness accounts, that Officer Wilson acted in self-defense and/or that he used a reasonable degree of force in his role as a law enforcement officer in the fatal shooting of Michael Brown. In other words, they found that probable cause, let alone proof beyond a reasonable doubt, did not exist to believe that officer Wilson committed a crime.

Let us return to the prosecutor “can indict a ham sandwich” quote. Let us imagine that the Ferguson prosecutor simply presented testimony from law enforcement officers who took statements (hearsay testimony is allowed in Grand Jury proceedings) from selective witnesses (who later recanted and/or whose accounts were disproven by forensic evidence) that Michael Brown was running away when he was shot in the back or that he had his hands up surrendering.

Let us imagine that the Grand Jury heard nothing about the strong armed robbery, the assault in the cruiser, the forensic or eyewitness testimony (from predominantly if not all black eyewitnesses of Michael Brown’s repeated attacks on officer Wilson). The prosecutor was not required to present any of that exculpatory evidence, nor was he required to allow Officer Wilson to testify.

Well folks, we surely would have had an indictment for first degree murder.

Then…. We would have had a long, long jury trail. The media circus would have commenced in full force with coverage of every pre-trial and in-trial motion hearing. The end result would have been either an acquittal or total miscarriage of justice .

Unfortunately, many in this country would have preferred the latter. That is the saddest part of what I opine. Had a trial occurred, and a proper verdict of not guilty was returned, that would have made the Al Sharptons of the world ecstatic. That is the second saddest part of what I opine.

Agree to Disagree: The Prosecutor Did The Right Thing


I will leave it to you, my dear readers: Was the Ferguson prosecutor correct by allowing exculpatory evidence into the Grand Jury proceedings in this limited circumstance or should he have indicted “a ham sandwich”? We can agree to disagree, but I believe that the prosecutor did the right thing in this case.

I still have grave doubts about the wisdom of his timing and motivation for announcing the “no bill” after dark. I applaud the Grand Jury’s courage and fairness as well. By contrast see my articles on the Trayvon Martin/George Zimmerman case.

Stanton Island was different. There was no issue of self-defense. The only issues presented to the Grand Jury were: Did officer Panteleo cause the death of Eric Garner without justification (a law enforcement officer using reasonable force to effect an arrest). The medical examiner found that officer Panteleo did cause the death of Eric Garner. That evidence was presented to the Grand Jury. The readily accessible video evidence was also presented. While there appears to be no evidence that officer Panteleo “intentionally” caused Eric Garner’s death (no evidence that Panteleo was aware of Eric Garner’s medical conditions), to me, there clearly appears to be probable cause for a charge of negligent homicide ,manslaughter.

Again, we can agree to disagree. In my opinion, the Panteleo case should have resulted in an indictment and set for a jury trial with a proof beyond a reason doubt standard.

In Maine, as in most states, prosecutors are allowed to “swear to” and file criminal complaints after merely reading police reports in misdemeanor cases. However, in felony cases, our prosecutors require a face to face interview with the lead law enforcement officer before even presenting a felony charge to a Grand Jury. A formal felony charge in Maine requires no less than a Grand Jury majority to find probable cause that the accused committed a crime in order to commence formal criminal proceedings.

About 99% of the time that Grand Jury proceedings are commenced, an indictment is handed up. Prosecutors control the entire process. Sometimes, prosecutors use their discretion to review cases and toss them out without filing a complaint for misdemeanor charges or they decline to present bogus felony cases to the Grand Jury.

On other, more rare occasions, very rare occasions, prosecutors will present a case to a Grand Jury as something other than a “ham sandwich”. You see, prosecutors have ethical bounds and they do adhere to them. They have to deal with close calls while treating defendants fairly as well as the community at large whom they have sworn to serve and protect. Let the people, the Grand Jury ferret out baseless criminal charges from meritorious claims that ought to proceed to a trial on the merits. Pretty much like it was about a thousand years ago.

We have entrusted prosecutors with a tremendous amount of discretion. We have also entrusted Grand Juries and traverse juries with a tremendous amount of responsibility. Sometimes they get it right and sometimes they get it wrong. We are all human. As such we all have our opinions and sometimes reasonable people can disagree. But, nothing ever justifies the advocation of or the actual murdering of anyone, including police officers, when we disagree with the opinions of others.

For more information regarding the process of the Maine criminal justice system, call me for a free consultation at 207-879-4000. I have moved my office to 1250 Forest Ave., Portland, Maine 04103. The email remains the same: mnichols@nicholschurchill.com.

Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).

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