Bob Franken


June 18, 2007
Ham Sandwiches (Bob Franken)
@ 6:54 am

If he feels like it, a prosecutor can indict a ham sandwich. It’s a cliche, but it speaks to the power we give those who can and sometimes do sweep aside our so-called presumption of innocence. They can easily get life-ruining indictments from poorly informed grand juries, based on dismally low standards of proof.

Let’s be clear There is no comparison between Patrick Fitzgerald and Mike Nifong. Unlike Nifong, Fitzgerald has scrupulously followed the rules that delineate his power. But do the rules give him and all prosecutors too much power?

And do the pliant judges who rule in their favor care more about protecting a legal system than the rights of those who run afoul of it?

Actually, the real question is: Should grand juries have the power to formally charge a person with a crime, while meeting in secret, based on a so-called “probable cause” standard, which is far below the “beyond a reasonable doubt” proof required for conviction?

And what of the prohibition in federal law, as well as many states, against a lawyer participating inside the grand jury room to protect his client? What about the Miranda “right to an attorney”?

Grand juries go way back. For almost a thousand years, in England, they were designed to protect against the might of the king. They are also enshrined in the Constitution’s Fifth Amendment. But now “the king” is the U.S. government. And these relics have the awesome ability to abuse our rights.

The argument for grand juries today is that law enforcement needs a way to deal with “the bad guys.” The problem is we claim, as a nation, to presume someone is a good guy until proven otherwise. In other words, we should be more than a country of ham sandwiches.

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