I promise to take a course on "Writing to be Understood." I'm doing a terrible job of it and I suspect that's why my first thread met with such distrust and rejection. Oh well, enough of that. "Onward and Upward."
You quoted me three times, then offered a discussion of each. Thank you, that helps me see the errors in my thoughts. Rather than requote them in their entirety, please allow me to refer to them as Quote 1, 2, or 3.
In Quote 1 there is no real disagreement between us even if it seems there is. I made true, factual statements about the Grand Jury system. You pointed out that there are additional considerations. I agree with you completely. I accept the power of the Grand Jury as a prosecutorial tool. That doesn't make the things I said false. I like this, full agreement so far.
In Quote 2, I am dealing with the contention that California's law eliminating the Grand Jury's authority to look into deaths of people being arrested or in custody is an landmark, nation leading event. I don't see why the population of the state makes a state law ground-breaking or not. How does the population of the state have any effect on the quality or history of the law? I just don't see it.
MY THINKING WAS WRONG. I'M SORRY. THANKS FOR POINTING IT OUT.
On the question of whether two states or half the states don't use grand juries, I didn't dig deeply enough. I owe you a huge favor for bringing the question to my attention. When I used the one-half figure I was relying on sources such as:
As well as a couple of other non-Wiki sources.
I see now that there is some controversy over the question, and it is not certain how many states use Grand Juries in cases like this. So, I WILL WITHDRAW MY STATEMENT. Because I don't know what the truth is. Of course, whether or not California's law is groundbreaking gives us no information about it's goodness, value, or even Constitutionality (Maybe Due Process clause?)
I agree that the Grand Jury system is flawed. There are many talented legal scholars on both sides of the question of whether Grand Juries should be abolished. The opinion I see most often expressed is that, if it is handled in an honest manner it can provide benefits to the accused and the prosecutor. "Discriminatory" is an interesting question. I'm not sure precisely what is meant, and how damaging a charge that is.
For example, an arrest is made without the accused's attorney present, the arresting officer is not required to listen to the accused's side of things, and the accused is not entitled to call witnesses. Yet few are calling for changes in the system of arrest, even though an arrest makes a near-permanent scar on an individual's record, and can cost him thousands in lost time, bail, and legal expenses. Even worse if it's a domestic abuse or sexual offense. Just the arrest itself will follow the accused through most if not all of his life.
But if discrimination is a bad thing (and depending on how it's defined and the circumstances, I don't think it always is), certainly the California law is. If either the prosecutor or the defendant thinks a Grand Jury will help them, only active peace officers will be unable to use it. All other citizens have it as an option. I know this sounds strange, but consider the shooting of Michael Brown. Here, the Grand Jury was the very best possible route for the prosecutor to take. From an article in The New Republic:
It is true that most grand juries choose to indict, but it also true that most grand juries only ever hear cases when a prosecutor is convinced that there ought to be a trial. That was not the case here. McCulloch was in a bind. As became clear in his remarks last night, he genuinely did not believe that Wilson had committed a crime. And a prosecutor is obligated to only “file charges that he or she believes adequately encompass the accused’s criminal activity” and to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” In ordinary circumstances, McCulloch would have declined to file charges. But in this case, McCulloch could not simply do nothing—this would have annihilated trust in the criminal justice system. So he did the only thing he could do: He took himself out of the equation and presented all available evidence to the grand jury
Without the Grand Jury option, McCulloch would have been obliged, both morally and legally, to not file any charges. But here, McCulloch said, in effect, "There is nothing to charge Wilson with, so here is every bit of evidence we have. I'm not going to encourage you to reach any kind of decision one way or the other. You citizens look at the evidence and tell me what you think should be done."
That sounds pretty fair to me. And when the citizens returned their judgment they sparked riots and injuries which were reignited to mark the first anniversary of the shooting.
In this situation, the California law would have only made things worse. In the California situation, the prosecutor would be required to not file any charges. People would argue (and riot) over whether that one individual made the right call. But it's the prosecutor's job to make calls. What good is it if the prosecutor is told, "You have every right to exercise prosecutorial discretion. That's an important part of your job and we wouldn't dream of interfering with it. But if you make a call we don't like you can expect lawsuits, violence directed against you and your family, and riots and destruction. But really, make any call you want, we won't try to influence you."
Yes, there are problems in the Grand Jury system as well as every other component of the judiciary, but I don't think the California law is a good way to address them.
I am really grateful for your comments, and I hope you can straighten out any more misunderstandings I have.