Oh, they would, they would; depends on who’s using it and how.
Like NFL franchises are any less alienated from the communities they play “for”?!
Prosecutors already are very powerful: something like 95% of people charged with a crime plead guilty rather than face a trial, because prosecutors can and do come up with all kinds of things to accuse them with, and even if you’re innocent it can make sense to plead guilty and take the lesser sentence than to fight it and, even if acquitted, be out months of your life and thousands of dollars. It’s a situation that makes some observers conclude that “our criminal justice system, as presently practiced, is basically a plea bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Note that high-profile, wealthy, and yes, white, defendants are relatively (but only relatively) insulated from this: Darren Wilson would have secured a defense fund, and so he would have gotten some ace lawyers and been part of the 5%.
Wilson Darren, a poor black guy who faces a dozen different drug trafficking charges because the cops found a pot plant in his apartment and the prosecutor doesn’t care that the place is subleased and Darren hasn’t been inside in a year … well, he’s just going to face the choice of pleading guilty and taking a year in jail, or rolling the dice and hoping that the PD he is assigned is conscious and sober.
The policy you advocate makes the enormous power prosecutors have even greater. It sounds good if you imagine they will only use this against those whom you, Frylock, think need some “signalling.” But if it’s permissible to charge even those that they know full well aren’t remotely guilty of anything, they are free to make life miserable for anyone they choose – and there’s every reason to think they will use it against political opponents, for personal grudges, and yes, to “signal” to unpopular groups and minorities that they’d best stay in line. I repeat: which groups do you expect to suffer the most from this new policy of encouraging prosecutors to go after “criminals” they don’t actually have a chance of convicting? Whose communities will the DAs of America decide most needs some real strong “signalling” – Darren Wilson’s or Wilson Darren’s?
In my experience, crush-the-kid-to-save-the-train logic usually ends up killing the kid AND derailing the train.
Not so much as he “doesn’t think he is guilty,” but if he thinks there is no chance of securing a conviction, he is ethically bound not to make the charge. If he thinks there’s even one chance in a hundred, he can make the charge (which isn’t to say he must or even should, nor that he must do so equally vigorously in all cases).
Note also: IANAL, but my understanding is if an accused is indicted, and then acquitted at trial, you can’t reindict even if new evidence is found (double jeopardy). If an indictment fails, new evidence can lead to a new grand jury. That’s a practical reason to hold off on indicting if you don’t think you can win.
Then why is a supermajority required just to proceed to trial? How could that possibly be a lower burden, if all the same nuances and contradictions were within the scope? (Have the lawyers here not explained how grand juries typically work?)
A better question would be why isn’t unanimity required.
I didn’t say anything about NFL franchises and don’t think they are relevant to the point.
Because it’s a finding of probable cause and not reasonable doubt. If you want to go back to the 1100’s, the foundings and theory of grand juries, and the changes that have occurred over the years, I suppose we could. But, in general, most states that have grand juries have them as a check on unbridled prosecutorial discretion to bring charges. But they also need to balance the problems of lone holdouts, pissed of jurors, and idiots, so at that stage in the proceeding, the decision does not have to be unanimous.
The burden of proof is lower.
Thanks for your concern, but I think I’m OK on my knowledge base of grand juries.
Hamlet, since you’re in here and YAAL, could you comment on the last bit in my last post?
For the record, that was the point I was trying to make against the argument (couched in a rhetorical question) was responding to.
I recognize and appreciate your consistency. 
And actually, have said what I have, I do also want to register kudos to the prosecutor for releasing the entire transcript of the proceeding. I read that this is very unusual, and I think having done this does help fulfill that “signalling” function I have been harping on. Will take some time for heads to cool enough for it to make a real difference but that’s things.
Sure.
All good points, but I would also add in additional layers of gray that muddy the waters even more: that prosecutors sometimes aren’t 100% convinced their own determination is correct and must be the final determination, and that there are systemic reasons that can influence a decision. I think, in this case, both of those concerns were included in the decision to take the case to the grand jury.
Roughly, yes. There are, because it’s law, many nuances (the similarity of the new law charged and the facts of the offenses and the use of superceding indictments, and the federal v. state issues), but by and large, this is right. Of course, unless there is a previously undiscovered video of the events of that night, I don’t think it’s very likely new evidence would force a re-convening of the grand jury.
But my entire point was that the abuses were NOT just in the past, that they are still ongoing.
Then why would you want questionable evidence which bears only on the reasonable-doubt standard introduced? Why would you want the suspect testifying in his defense? Why would you not want the prosecutor making a case?
You’ve lost me. I honestly have no idea the point which you are trying to make.
As I said, I think the prosecutor did not believe there was any legitimate chance of obtaining a verdict of guilty beyond a reasonable doubt based on the evidence in the case. Rather than simply not file charges himself, he presented the evidence, including the exculpatory evidence, to the grand jury.
You seem to be advocating that, in this case, the prosecutor, despite the belief that there was not enough evidence to ever obtain a conviction, should have forbidden the defendant from testifying, hidden exculpatory evidence from the grand jury, not impeach any of the witnesses they called, and try desperately to get a true bill. I think that’s not the wisest solution to the problem. And then you lost me.
It’s not a matter of “forbidding” and “hiding,” just of making a typically sincere grand-jury effort to get the case to trial, where that stuff belongs.
If the DA thought the case is weak and unwinnable, what virtue is there in trying to secure an indictment? If your neighbor thinks you TPd his house but you have proof you did not, should you be put on trial? This is analagous.
You either have a cavalier attitude toward homicide, or some really hardcore pranksters in your neighborhood.
If there’s no virtue in trying to secure an indictment, then one shouldn’t pursue a grand jury proceeding, because to initiate a grand jury proceeding is to attempt to secure an indictment. Every reason that exists to take things to a grand jury is a reason to make the best case you can to that grand jury. To do anything else is to play with the system in a way that inspires no confidence in anyone.
I’ve pointed out what is wrong with this thinking twice before, but apparently it didn’t sink in. A prosecutor, even if they think there is little chance of actually proving a case beyond a reasonable doubt, can bring a case to the grand jury to either forgo being the sole decision-maker on a case and/or to try and help the system as a whole gain credibility by presenting the evidence to a jury before spending millions of dollars on a complete trial.
Tell me, do you think it would have been a better resolution if the prosecutor had declined to even present the evidence to the grand jury? Because I think it’s pretty clear that it wouldn’t have been.
And, to be honest, I think the very people who are bothered by a prosecutor not doing enough to obtain a true bill in this case would be some of the first to condemn it in almost any other case. But that’s neither here nor there.