“It is the bedrock of our criminal justice system,” Butler County Prosecutor Michael Gmoser said of the constitutionally protected process.
But there’s a lot of distrust and lack of confidence in the grand jury process these days, namely from critics who say grand juries rarely indict police officers despite the old adage that a prosecutor can get a ham sandwich indicted. The trust factor also isn’t helped by the fact that grand juries are conducted secretly and what is said by witnesses who testify before them also remains secret, unless ordered specifically by a judge.
The Journal-News recently spoke with county prosecutors and defense attorneys about grand juries and why they are so important to the justice system in an attempt to shed more light on the process.
How grand juries work
In Ohio, a person must be indicted by a grand jury before being tried on a felony charge that can send them to prison for years. That is not the case for lesser or misdemeanor charges that are handled by municipal and area courts and carry at most a sentence in a local jail for a few months, according to Gmoser.
Grand jurors come from the same pool of registered voters as jurors who hear trials, said Butler County Clerk of Courts Mary Swain. Grand jurors serve for three months in Butler County, meeting one or more times a week.
Nine citizens sit on a grand jury as opposed to 12 in at trial, or petit, jury. Unlike a criminal trial jury, an indictment is secured when seven of the nine vote for the charge, returning what is know in the legal world as a “true bill.”
“That has changed over the years. The reason it was called a grand jury is it used to have more jurors than a petit jury,” Swain said.
The grand jury’s job is to listen to evidence and determine if there is probable cause that a crime was committed. They are not triers of a person’s guilt and the evidence is limited, so grand juries are not asked to find whether a person committed a crime “beyond a reasonable doubt” as trial juries are tasked with.
The rub for some critics comes from who is presenting evidence to the grand jury; it is solely the prosecutor’s show. The prosecutor presents the evidence, and there are now defense attorneys allowed in the proceeding.
Thus the expression, “A prosecutor can get a ham sandwich indicted,” Gmoser said.
“Nothing is further from the truth here. It doesn’t serve justice, and frankly, it doesn’t serve the prosecution. Why would I want to get an indictment for a case that can not be won based on the evidence? I am always mindful, the charge has to meet the test of going to trial,” Gmoser said.
Warren County Prosecutor David Fornshell said, “It does no good to hide the ball at grand jury. I tell them what I think my weaknesses are and if there is any evidence that is truly exculpatory (favorable to the accused).”
“I don’t want indictments in cases that don’t have a realistic chance of getting a conviction,” he added.
And unlike Ohio trial juries, grand jurors are able to ask questions, and in Warren County they have plenty.
“Oh they ask lots of questions, which also gives a good perspective about how jurors might view evidence at trial,” Fornshell said.
No doubt the grand jury process is heavily stacked in favor of the state or prosecution, said Butler County Defense attorney David Washington, “but it is a good filtering process.”
“But what system is going to be better,” Washington said.
“It is helpful to the defendant, sometimes charges are changed and lowered and sometimes the don’t return indictments.”
Defendants almost never know when a case is being presented to a grand jury and defendants rarely testify, Washington said.
“We have to be invited to the party,” Washington said, noting the prosecutor has to invite or allow the defendant to testify at grand jury and that person is subject to cross examination without defense counsel.
Washington said he has allowed his clients to testify at grand jury in limited cases.
Clyde Bennett, defense attorney in both Butler and Hamilton counties, said the grand jury is only “getting one side of the story. There is no defense and no conflicting view point.”
He added, “but I don’t want to do away with it, it is a protection a defendant is afforded against serious charges that can not be proven.”
In both Butler and Warren counties, the large majority of cases go through a preliminary hearing process before they are presented to a grand jury.
A person locked up and charged with a felony, must have a preliminary hearing or be indicted within 10 days - if they post bond, the clock changes to 15 days. At a preliminary hearing, a lower court judge listens to limited evidence to determine if there is probable cause to believe the person committed the crime and sends it to grand jury. But unlike a grand jury, a preliminary hearing is public and a defense attorney is present to cross-examine defendants.
Gmoser estimated 65 percent of Butler County’s cases go through the preliminary hearing process, but he does take some directly to grand jury. Fornsell estimated 75 percent in Warren County are taken through the preliminary hearing process.
“I don’t always take cases directly to the grand jury. It doesn’t give me an opportunity to see how well the evidence is going to hold up and be fleshed out in the public arena,” Gmoser said. He added witnesses often react differently in a public courtroom than in a private grand jury room.
In Hamilton County, all felony cases are taken directly to grand jury, according to Mark Piepmeier, assistant prosecutor, who handled the case of former University of Cincinnati police officer Ray Tensing when it was presented to a grand jury, resulting in a murder indictment and the grand jury that did not indict in the fatal police-involved shooting at a Beavercreek Walmart.
It is a procedure that has been in place for more than 20 years in Hamilton County, Piepmeier said.
“We have two grand juries going every day,” he said. “They can hear 20 or 25 cases a day.”
He said they found going the preliminary hearing route was more costly, bogged down the lower courts and slowed the case down.
All three area prosecutors said it is essential that grand jury proceeding remain secret.
“To protect the innocent,” Piepmeier said about why secrecy is important. “If it was made public that a grand jury investigated a person and it turned out there was not enough evidence to indict, it could ruin someone.”
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