The Revolt of the Grand Juries

 

Even if all your knowledge of criminal law was learned, not in law school, or even in high school, but by watching reruns of Law & Order, you would still have a better understanding of the basics than, it appears, anyone in the higher levels of the Justice Department.

You would, at least, be somewhat familiar with concepts like “probable cause” and “reasonable doubt,” which is more than it seems we can say for U.S. Attorney Jeanine Pirro.

Pirro, known more for her boozy lies on Fox News, seems to have forgotten much about the law since first being admitted to the bar, pun intended. Fortunately, there are judges willing to throw out her slipshod, outrageously political cases, which have seen a number of D.C. residents tossed in jail for the most specious of reasons. All so that Trump — as well as Pam Bondi, Stephen Miller, Kash Patel, and Pirro herself — can show the deluded base how effective they are at fighting crime in the supposedly blighted streets of the nation’s capital.

But while we’ve seen, in the last six months, plenty of judges stand up to Trump’s brand of fascism, it’s completely new to see grand juries standing up as well.

I promise this is the last time I will ever invoke the overused cliché that a grand jury would indict a ham sandwich. But watching the repeated failure of Pirro to obtain indictments in at least seven very recent cases of overt Gestapo-style fascism, it appears the ham sandwiches of the world are fighting back.

I’m also not the first to note that one of the cases concerned an actual sandwich, though I’ve heard it was salami, not ham. Pirro sought a charge of felony assault against Sean Dunn, for the alleged crime of throwing a Subway sub at a customs officer.

Actually, there is nothing “alleged” about it. Dunn was caught on camera launching the missile-shaped projectile at point-blank range, inflicting grievous humiliation on his target, then running away. A warrant was subsequently issued, and he tried to turn himself in, but Pirro preferred sending thugs to his home, so they could perp-walk him out in handcuffs.

For this heinous act, Pirro had her office seek federal charges that can carry an eight-year prison sentence, a detail I’m fairly sure was kept, by rule, from the grand jury. Grand juries are all about crime, not at all about punishment.

The sandwich case was one of seven cases that failed to obtain an indictment, mostly because the search-and-seizure violations were so blatant, any Law & Order viewer would cry foul in a heartbeat.

Most cases were along the lines of “drunk and disorderly,” and would normally be dismissed with a slap on the wrist, or at most a misdemeanor. But because there’s a fascist takeover of the city going on, Pirro’s office raised the stakes, seeking federal charges that carry stiff prison sentences.

Fortunately, the charges were so transparently political, so poorly put together, and so clearly issued in bad faith, sitting grand juries had no trouble calling bullshit. Amazingly, they have the power to do this.

I’ve written before about grand juries, having served on two of them. I was one of sixteen jurors whose job, basically, was to rubber-stamp criminal indictments, which were being sought by prosecutors who knew exactly how to convince us to do just that.

So it is with some astonishment that I’m watching Pirro perform the impossible. Most prosecutors go a whole career without losing in front of a grand jury. Pirro just lost seven cases in a month.

It’s hard to overstate how difficult this is to pull off. The ham-sandwich cliché stems from the fact that grand juries are, by design, rigged for the prosecution. They exist only for the purpose of hearing the prosecutor’s evidence, then deciding if that evidence merits an indictment. No defense is presented. Defense lawyers never appear. Defendants are allowed to appear, but almost never do.

Unlike trial juries, unanimity is not required to indict. Federal grand juries only need twelve votes out of a possible twenty-three. There is no standard of reasonable doubt, nor cross-examination of the evidence. For a prosecutor, it’s a piece of cake.

Which is why grand jurors will, in 99.99 percent of cases, vote to indict. I saw over a hundred cases in my two stints — as many as ten per day — and never once saw one that didn’t result in indictment. You’re more likely to be struck by lightning.

There are really only two kinds of cases where a grand jury might refuse to indict. One is when it’s a case against a police officer — some people can’t accept that cops can commit crimes. The other is when there is clear incompetence in the prosecution’s preparation of the case.

But we now have to add a third kind: flagrant fascistic intent. Every action taken by DOJ these days is tinged with political spite, and with an open embrace of Nazi repression tactics. Grand jurors are no doubt seeing this in the cases being brought before them. The utter lawlessness of the government lawyers must to them be self-evident, and impossible to ignore.

This grand jury revolt is still in its infancy. So far it’s only happening in D.C., where Trump’s occupying forces are clearly not winning over the populace, and where the grand jurors selected from that populace are clearly not happy.

But it’s a promising trend, especially when we hear of the regime’s plans to occupy other cities. Washington is federal turf, after all, and there is some legal basis, however dubious, for its takeover. But if DOJ can’t even win an indictment in Washington, what chance will they have in Chicago? Or New York? Or Los Angeles?

If the demonstrations in Chicago over the weekend are an indication, any attempted incursion by federal — or federalized — troops will be met with considerable resistance, hopefully peaceful. Throwing sandwiches sounds about right.

But in the meantime, a lot of grand juries are sitting, even now. Each one is a jury of one’s peers. Grand jurors stand in for their peers, because somebody has to decide who should be prosecuted for criminal behavior, and it sure as hell shouldn’t be Jeanine Pirro.

Yes, grand juries can be rubber stamps for the prosecution, and in normal times we might argue whether that’s a good thing or not.

But apparently they can also tell when a stooge like Pirro is full of shit, and when the prosecutors are the real criminals. And that’s a good thing, for sure.