Almost ten years ago, GFactor and I collaborated on this SDSAB column discussing grand juries. A relevant excerpt:
The whole column is worth a read, in my completely unbiased opinion. 
The case was United States v. Williams, 504 US 36 (1992).
John Williams was charged with knowingly making a false statement or report for the purpose of influencing the action of a federally insured financial institution. He had listed, on a balance sheet provided to his bank, “current assets” of roughly $6 million in notes receivable from three different venture capital companies. The government contended this was deceptive, since the companies could not actually pay those notes and Williams knew it. He also listed as income the interest paid on those notes without making clear that the interest was being paid out of his own loans to the companies – in other words, he loaned them money and they were paying back the interest from the loan proceeds.
After he was indicted, he asked the court to unseal the relevant portions of the grand jury transcripts and discovered that the government had never mentioned to the grand jury that his general ledgers and tax returns, which were also provided to the banks, and his testimony in his bankruptcy case, were all fully transparent with respect to the notes and the source of the income. This, he said, was strong evidence that there was no intent on his part to deceive anyone. He said, in effect, that the grand jury never would have indicted him if they had been told about his general ledgers and tax returns.
The question decided by the Supreme Court, then, was: does the federal grand jury prosecutor have an obligation to present exculpatory evidence? (Note: this is not, “May he?” This is “Must he?”)
The federal prosecutor does not have a binding obligation to present exculpatory testimony to a federal grand jury.
That’s nice. What is the damning evidence that was withheld in the Rice case?
Regards,
Shodan
But I don’t think you’ve touched on the main issue of the OP. Aside from whether or not the case being cited supports or refutes the OP’s question, is it proper* for a DA to skew the evidence presented for the explicit purpose of NOT obtaining an indictment? Let’s leave alone, for the moment, whether it’s possible to determine the DA’s intent.
*proper here could be mean either legal or ethical, so let’s consider both.
Well, the prosecutor has near-absolute prosecutorial discretion – he cannot be compelled to initiate a prosecution in any circumstance I can think of, and the only issue I can come up with is perhaps the vague notion that he’s shortchanging his client, the people of his jurisdiction, by failing to zealously advance their interests. But by virtue of his office, the people have vested in him the discretion to weigh their interests, so I’m not aware of any canons of ethics issue with him deciding to soft-pedal evidence to the grand jury.
Obviously this is limited to a situation in which he decides in good faith that the interests of justice are best served in this way – a prosecutor that exercises his discretion to nolle pros in return for an envelope of hundreds is certainly acting illegally.
But no one here is suggesting that scenario, as far as I can see. What about a prosecutor that soft-pedals a case to mollify the police he has to work with and the “Tough On Crime” voters he panders to?
edited to add: He may think he is giving “the people” what they want-“the people” being those he works with and those that are likely to vote for him.
Well, Ohio’s prosecuting attorneys (their equivalent of DAs) are elected, so if he’s not giving the people what they want they can kick him out of office. If the evidence in the Rice case justifies a prosecution then it’s not impossible that the Department of Justice will attempt its own prosecution, though it couldn’t be for murder.
I think it’s a political question: the prosecutor can be removed from office by the people.
In many states, including Ohio, the prosecutor is an elected office. (Also true for my home state, where we elect a Commonwealth Attorney for each county). A prosecutor who is unresponsive to the will of the electorate presumably will suffer that fate.
ETA: er… as RNATB said.
Jeopardy doesn’t apply, does it?
Yes, you are basically repeating back what I just said to you, without saying anything about the ethics/morals of the situation. We realize that if the people that want cases like this to be soft-pedaled in the name of “LAWN ORDER” are of sufficient number to get the prosecutor reelected, along with the police he has to work with on a daily basis, then he probably has a legal right to present the case in a way that satisfies their(and in the end, his) needs…but is it ethically right?
Thank you. My ignorance has been fought. I should have asked in GQ but wasn’t even sure how to phrase the question.
A question still remains, however: When a case is presented to the grand jury to comply with a public interest in prosecution, it would seem appropriate that the case be presented in its best light. I can see that the prosecutor has and should have discretion, but if his intention is to present an exonerative case, why present the case at all?
The grand jury can call its own witnesses etc. Can it call for a new prosecutor? How often, in practice, does a grand jury deviate widely from the prosecutor’s intent?
You post in the other thread and tell us what you now know about investment. Then I’ll answer your question here. Deserve respect before expecting it.
Nope. Jeopardy does not attach until a petit jury has been empanelled (essentially, once an actual criminal trial begins).
The answer is we don’t know. There are hundreds of pieces discussing a prosecutor’s duty to seek justice rather than convictions (that is, to help the defense in some circumstances). There are none that I know of discussing a prosecutor’s duty to attempt to obtain an indictment in every grand jury proceeding.
As I noted above, if this case was handled differently from other grand juries in homicide cases in the district, I would find it troubling. But I’m not sure that would have been unethical.
Indeed it is proper. As long as all the evidence is presented, it’s OK.
There is no standard to judge ethics in this manner. Do you have an opinion to offer or a framework to evaluate the ethical implications or are you JAQing?
Yeah, keep in mind we’re largely talking about cases a prosecutor doesn’t think he can win, but is taking to a grand jury for political reasons. The only arguable “ethical” approach would be to use his genuine prosecutorial discretion and not prosecute the case at all, but that would leave people howling with outrage.
Keep in mind prosecutors in Baltimore recently lost a case in which they did everything basically the opposite of what the Cuyahoga County Prosecuting Attorney did, they were aggressive with the process from the very beginning–and lost.
The Supreme Court requires the situation be evaluated not from 20/20 hindsight, but from the perspective of a law enforcement officer engaged in a heat of the moment incident. Juries tend to be sympathetic to law enforcement. These are extremely difficult, rare cases to win.
To be frank under our current legal framework fixing the problem of lots of police shootings isn’t really something for the courts. The courts are only ever going to convict the most egregious and obvious incidents of police outright murder. It’s for policymakers like State and local governments who regulate the practices and use of force matrices for law enforcement, training etc.
I wasn’t “Just Asking Questions”-I was looking for an answer to the question actually asked, instead of a reworking of what was already stated.
Okay - how would you propose to determine if something is ethically right?
No, I’ll post in this one. Got any proof of what you allege?
Regards,
Shodan
Referring backing to the initial news story linked to in this thread, I would like to know if the prosecution goes to these lengths to find evidence exonerating the people the police bring in, or is it just the police(and other government officials) that get this kind of treatment?