You May, On Occasion, Encounter a Particularly Cunning Ham Sandwich
by Ken Dec 22, 2008
In the roughly six years I worked as a federal prosecutor, I never had a grand jury refuse my request to indict. Moreover, in that entire time — in which the feds sought between 5 and 10 thousand indictments in Los Angeles — I know of only one occasion on which a grand jury no-billed a case. (In that case, the INS — as it was still called — was trying to arrest a young man for deportation, and his mother released the family dog on the agents. The agents shot the dog. The grand jury concluded this chain of events did not merit prosecution for the mother, apparently.) My experience is not uncommon. It is notoriously easy to persuade grand juries that there is probable cause to indict. Hence the cliche referenced in the title of my post.
When a grand jury does no-bill a prosecutor, it’s often dreadfully inconvenient. Usually one has to get approval from some officious higher-up (a Deputy Attorney General, in the case of the feds, I think) to re-present the case.
Wouldn’t it be much more convenient to simply pretend that the grand jury had properly grasped the urgency of the government’s case, and proceed as if the grand jury had returned a true bill?
Why, yes. Yes, it would. Take it away, Jefferson County, Oregon District Attorney’s Office.
David Lee Simmons was accused of various breaches of Oregon law for allegedly having sex with his girlfriend when she was 14 and he 17. The grand jury no-billed it. Did that matter? No.
Note that everyone is giving the prosecution the benefit of the doubt and believing that they missed the no-bill. Given how much of an event a no-bill generally is, generating buzz among the jurors and court reporters and grand jury assistants, I find this rather difficult to believe.
It’s undisputed, though, that Simmons’ lawyer didn’t catch it. But whether that reflects badly upon him depends upon procedure in that court. In federal court, and in many state courts I have seen, there’s only one true-bill copy of an indictment with the grand jury foreperson’s signature. The defense attorney, and everyone else, gets a copy of the indictment without signatures. One presumes, as a defense attorney, that the government would not go as far as to prosecute a case that was specifically rejected by the grand jury. That would be ridiculous — obstruction of justice at least, possibly all sorts of other violations of criminal law and professional ethics. After reading about this, I’m not sure I can keep making that assumption.
Simmons pled guilty. 999 out of 1000 times, that would have been it — a man convicted of something for which he was not indicted.
Simmons hired new counsel, who argued that Simmons could not properly be prosecuted twice for the same thing. But Mr. Simmons was in for a surprise. He was charged again for the same acts, this time with misdemeanors.
Wait, wrong story.
In other words, even though he was prosecuted and went to jail the first time, precisely because the District Attorney prosecuted without a valid indictment, he could be prosecuted for the same thing a second time.
There may be other flaws in Simmons’ double jeopardy analysis. But that point of law smells — what’s the word? — assy.
Fortunately, Simmons is a proud American, and therefore will not stand content to be a victim. And how do we Americans throw off the yoke of victimhood?