How A Grand Jury's Indictment Is Indistinguishable From Being Found Guilty

by Tim Cushing
Techdirt
Feb. 16, 2014

A recent post of mine took on grand juries, specifically the astounding fact that a North Carolina grand jury managed to crank out 276 indictments in four hours -- or roughly, one indictment every 52 seconds. Some commenters pointed out (correctly) that grand juries don't actually declare anyone "guilty." They just determine whether the prosecution has enough evidence to bring the case to trial.

But the system is still broken. Grand juries may not hand out guilty verdicts, but they do have the power to imprison people for an indefinite amount of time simply by indicting them. This is exactly what happened to Justin Carter, the teen charged with making terroristic threats after someone reported statements he made while trash-talking with some fellow League of Legends players. The Dallas Observer has been tracking this case (via Reason), and the phrases below are what have been termed "terroristic threats."

One of the comments appears to be a response to an earlier comment in which someone called Carter crazy. Carter's retort was: "I'm fucked in the head alright, I think I'ma SHOOT UP A KINDERGARTEN [sic]."

Carter followed with "AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN."

Carter was indicted by a grand jury based solely on these statements. (Police failed to uncover anything else damning after searching Carter's residence.) According to Carter's lawyer, the prosecutor presented the "threats" using a couple of screenshots wholly removed from context to the grand jury, which found these met the requirements of the "terroristic threat" charge.

But Flanary says that Bates presented a truncated version of the comments to grand jurors. They did not see "I'm fucked in the head alright, I think I'ma" before "shoot up a kindergarten." If this sounds like the nitpicking of a defense attorney, that's precisely the point.

"When you're dealing with speech," Flanary says, "... it is absolutely, 100 percent important that the words that you are charging people with are actually the words that they said and not some misrepresentation. And that's what ... this prosecutor did, is misrepresent to the grand jury what he said."

So, the grand jury indicted Carter and the prosecutor asked for $500,000 bail. Carter was jailed in February of 2013 (the first month of which he spent unindicted while officials sorted out jurisdictional issues), where he was beaten, raped, put in solitary for his own protection and placed on suicide watch. He wasn't released until July when an anonymous donor paid the bail.

How is that indistinguishable from being found guilty in court? A prosecutor presents only the evidence that will persuade the grand jury to indict and follows it up by asking a judge to set an exorbitant bail. For Carter, he may as well have been found guilty by a jury, for all the difference "it's only an indictment" made. Since his family couldn't afford the bail, Carter remained imprisoned, despite not having been found guilty of any crime.

Running 276 cases through in four hours is grossly irresponsible, and it put an unknown number of people into a position like Carter's -- jailed but still supposedly "innocent until proven guilty." For a large majority of Americans, a bail amount even 1/10th of Carter's $500,000 is unaffordable. Once indicted and with bail set above what they can afford, they are jailed until they can go to trial and finally start exercising their due process rights, which can often be months after the indictment.

I understand the bail process is in place to help prevent the accused from simply fleeing the country, state or whatever and avoid "justice," but this combination of grand juries and aggressive prosecution seeking excessive bail amounts turns the system into "guilty until proven innocent."

That's not how the system is supposed to work. You're not supposed to be indicted, jailed indefinitely and then finally allowed to face your accusers and a jury of your peers, if and when that date arrives. Grand juries subvert the criminal justice system, turning the merely accused into de facto criminals, indistinguishable from the other prisoners except for the fact that many of their new "peers" have likely had a chance to avail themselves of their constitutional rights.