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October 27, 2015


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public defender

It’s not surprising that you didn’t see any prosecutorial misconduct. The way the rules are written, it’s almost impossible for a prosecutor to commit misconduct during the grand jury process. For example, it’s not misconduct if the prosecutor knowingly withholds compelling exculpatory evidence. That means a prosecutor can tell a one-sided story that bears little resemblance to what actually happened. If one witness saw X and one witness saw Y, the prosecutor can just choose which version of events supports the greatest charge and produce only that witness, knowing that the grand jury will never find out about witness Y. It’s also not misconduct to withhold pertinent legal information from you. That means they can just choose not to tell you that you can no bill a case based on your disagreement with the law even if there’s probable cause to indict. With respect to the few ways in which a prosecutor can actually commit misconduct -- for example, knowingly presenting false evidence -- you’d never know it.

You’re basically there like a lot of pieces of the criminal justice system: to give an unfair system the veneer of fairness.

Bob Strassfeld

Somehow, my response to public defender disappeared into the ether of the internet. I will try again, but try to keep it brief, since I will address a number of the issues he raises in subsequent posts.

I agree with public defender that given the ways that the rules are written, there is little reason for prosecutor misconduct. I disagree about some of the particulars.

As public defender suggests, we were never instructed on the availability of nullification by the prosecutors. Nevertheless, we knew that nullification was an option, and on at least two occasions we no-billed even though we were convinced that there was probable cause to believe that the suspect had committed the charged crime. We simply concluded that justice dictated a no-bill. More typically, our acts of nullification were individual, and thus ineffective. In those cases the issue was not that we did not consider nullification an option open to us, but fewer than three out of nine of us thought that justice dictated a no-bill. The problem wasn't that we lacked the knowledge that we could nullify. Instead, because we were in public defender's words, little pieces looking at other little pieces of a much larger whole, we lacked the knowledge that would tell us when and why to nullify.

I am not particularly troubled that we did not usually learn about exculpatory evidence. Ohio might have adopted a system of preliminary hearings, instead of reliance on a grand jury. I have no view about which system works better. I am inclined to think that the prosecutor's office was not interested in bringing us cases that they seriously doubted they could win, should the case go to trial, though I also imagine that it did want indictments in cases that it thought were underdeveloped but potentially winnable. I understand that there are reasons why a prosecutor might bring a lousy case to a grand jury, in which case she would have an incentive to present a one-sided case to hide its weakness. She might want the leverage of a felony indictment to extract testimony against co-conspirator, or she might unscrupulously use the leverage to obtain a plea bargain in a lousy case. I agree, that we do not know what was not presented to us, but nothing that I saw suggests that we were being manipulated in that way. Instead, there were times when the police officer's presentation of the case revealed that there was less to the case than the prosecutor expected, and she responded by removing unsupported charges or by signaling that we might no-bill.

My greater concern is that prosecutors may be inconsistent regarding the presentation of exculpatory evidence. We saw this in the presentation of evidence (including evidence that the prosecutor subsequently said he knew was false) to the Michael Brown grand jury, and there is reason to be concerned that the same is occurring here in Cuyahoga County in the Tamir Rice case. If exculpatory evidence only comes to the grand jury in instances of police misconduct and excessive force cases, we have a problem. I will have more to say on this matter in future posts.

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