State's grand jury system criticized

April 09, 1994|By Jim Haner | Jim Haner,Sun Staff Writer

Most of them are black women and several have been victims of violent crimes. One had her throat cut by a rampaging ex-husband. Another lost a niece to a sniper who was later shot by police marksmen.

Meet Baltimore's grand jury.

Their names are a secret. But they took part last month in a Baltimore police seminar to better understand the pressures officers face when they pull the trigger.

That alone made it all the more surprising this week when panel members asked prosecutors to draw up murder charges against two officers in the fatal shooting of a convicted drug dealer in what homicide detectives said was a clear-cut case of self-defense -- then changed their minds 17 hours later. In the aftermath, lawyers and legal scholars called the move "probably unprecedented," "stunning" and "ridiculous" as they sought to decipher the grand jury's mixed message.

All agreed that it stands as a frightening illustration of the deficiencies in Maryland's grand jury system -- which operates without clearly defined rules, changes from county to county, and is plagued by absenteeism and politics.

"In Maryland, the grand jury is really just a rubber stamp and a political tool for prosecutors, instead of the legitimate investigative body that it is in other states," said Domenic Iamele, a prominent Baltimore criminal lawyer. "By all PTC appearances, this is a case that should never have gotten this far. It's a stunning example of what can happen."

State's Attorney Stuart O. Simms said he gave the case to the grand jury because it was the only way to sort through "significant varying accounts" from witnesses before "a neutral body."

The function of the two dozen jurors is to hear evidence prepared by prosecutors and to decide if there is "probable cause" to believe that a crime has been commited. Prosecutors decide what, if any, evidence to present in a suspect's behalf. The jury hears no rebuttal testimony and is not required to keep a record of its proceedings under Maryland law.

"There are simply no rules in the criminal code that govern what they can do," said Clarke Ahlers, a Baltimore criminal lawyer. "Prosecutors have tremendous latitude in what evidence is presented to them and the jurors have wide discretion in what they do with it."

Under normal circumstances, the prosecutor then asks the jury to formally accuse the suspect of a specific crime, said Abraham Dash, a criminal procedure professor at the University of Maryland.

All that is required is a majority vote of the grand jury, which then gives its signed charging document to the presiding judge. When the judge opens the indictment, it becomes final.

"That is how it is supposed to work," said Mr. Dash, a former federal prosecutor. "That is how it works in the federal system and in every state that I know of. Unfortunately, any and all scenarios are possible in the state of Maryland.

"The rules change from county to county -- and sometimes from day to day. That said, it is still the prosecutor who controls the jury. And it is obvious to me that the prosecutor in this case lost it. Something went terribly wrong."

From the earliest days after the Feb. 2 shooting, Mr. Dash and other lawyers said, the case had ominous political undertones.

Two white officers had killed a black suspect in a city with a 60 percent black population in which all but three of the 17 suspects killed by police since 1992 were black.

Several witnesses had appeared on television claiming that the officers had shot Anthony Darryl Redd, 31, execution-style after they subdued him. And protesters marched on the mayor's office.

"In that kind of case, you don't want to be the prosecutor who exonerates the officers," said Byron Warenkin, a criminal law professor at the University of Baltimore. "But you also don't want to be the one who charges them if the best evidence is in their favor. By giving it to the grand jury to decide, you protect yourself against the political backlash."

Lawyers for Officers Lewis G. Yamin and Stephen C. Nalewajko point out that the best evidence from eyewitnesses and forensic experts was that the officers shot Mr. Redd -- who was on parole for manslaughter -- as he struggled to pull a .357-caliber Magnum from his waistband when they tried to arrest him.

In secret proceedings before the grand jury, prosecutors presented evidence over five days before giving the panel a choice of three possible charges if it found that the officers didn't act in self-defense, Mr. Simms said. On Wednesday afternoon, Mr. Simms said, he was told that the jury was having some "technical difficulties" but wanted him to prepare charging documents for second-degree murder.

Mr. Dash called this process "completely backwards."

"To give a grand jury the job of making the legally technical decision of distinguishing between three charges is ridiculous," he said. "They are supposed to be given a specific charge in the form of a written indictment to measure against the evidence.

"Without that piece of paper in front of them, their deliberations aren't much better than dinner conversation."

Mr. Simms then notified the police union to have the officers prepare to surrender because they were about to be indicted.

But by the next morning, the jurors said they had changed their minds and withdrew the request.

Legal scholars said they can only speculate about the reason because grand jurors are sworn to secrecy. Perhaps the decision turned on racial divisions in the jury. Perhaps some jurors were absent the night before and returned in the morning to sway their peers. Perhaps news accounts of the pending indictment came to their attention.

"I do not know," Mr. Simms said. "I just am not privy to that. I was not in a position after presenting them with those options to interfere in any respect in any way."

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