Barnes explains his move to cut use of grand jury

January 15, 1995|By Darren M. Allen | Darren M. Allen,Sun Staff Writer

Once a month, 23 Carroll residents would be ushered into a cramped room in the Old Courthouse and asked by prosecutors to accuse dozens of people of committing all but the most minor crimes.

The group -- sitting as the Carroll County grand jury -- was frequently used by then-State's Attorney Thomas E. Hickman, who took almost all criminal cases -- including ones that originated in District Court -- before the secret panel.

However, amid complaints by Carroll defense lawyers that the practice often limited the rights of their clients to a fair, open preliminary hearing before a judge, new State's Attorney Jerry F. Barnes has pledged to go to the grand jury far less often.

Mr. Hickman said he used the grand jury more often than many of his counterparts around the state because doing so "is more efficient and cost-effective."

Mr. Barnes said the practice of taking cases already begun in District Court -- say, a drunken driving charge -- to the grand jury on a routine basis gave the appearance of denying a defendant a preliminary hearing before a judge.

He also said that taking almost every case before the body can actually allow prosecutors to extend the life of "bad cases" simply because a judge is not able to determine whether they have even met the first burden of proof.

"A preliminary hearing lets us see if our case is a strong case, and it allows us one more way to evaluate it," Mr. Barnes said. "You'll see us use the grand jury the way it was supposed to be used."

In a preliminary hearing, prosecutors must convince a judge that they have established probable cause that a crime has been committed. And while the same level of proof is required for a grand jury to return an indictment, defense lawyers argue that convincing a panel of 23 ordinary citizens is far different from passing the scrutiny of a judge.

Open to debate

Whether Mr. Hickman's or Mr. Barnes' approach to the grand jury is more sound is open to debate, according to a University of Maryland law professor.

On the federal level, for instance, all charges must originate by indictment, Abraham Dash, a former federal prosecutor, said.

He said the standard of proof -- probable cause -- was the same whether in front of a judge or a grand jury, meaning that the same set of charges likely would emerge from either venue.

Mr. Hickman said he wasn't avoiding the scrutiny of a probable-cause hearing before a judge. Rather, he said, issuing indictments is a far less time-consuming and expensive way of accusing people of crimes.

In addition to returning the grand jury to its more traditional role as an investigative body and as the originator of serious cases in the circuit court, Mr. Barnes also has said he would end the long-standing prohibition against recording the group's proceedings.

In Maryland, whether testimony in front of the grand jury is taped is at the discretion of the prosecutor; Mr. Hickman opted against.

"Again, it was a matter of cost," the former prosecutor said.

To obtain an indictment, prosecutors must convince at least 12 of the grand jurors that probable cause exists.

Mr. Barnes' changes are a relief to Carroll defense lawyers. And, Professor Dash said, a return to good judgment.

"Good Lord, that's terrible," the professor said when asked if it was unusual not to record grand jury proceedings. "The whole point of the grand jury is to have things under oath and on the transcript."

For years, Carroll defense lawyers would file motions seeking to have grand jury indictments thrown out because prosecutors could not provide them with testimony that led to the indictments.

And, for years, the prosecution would argue that such a request was moot, since it was the universal practice of the state's attorney not to record any proceedings.

L Without exception, Carroll's judges would deny such motions.

Pleased with change

Stephen P. Bourexis, who has waged several public battles with Mr. Hickman over the issue in recent years, is pleased with the changes.

"If you have nothing to hide, if you stand by your charges, then why not record the proceedings?," he said.

Leonard H. Shapiro, an Owings Mills lawyer who has practiced in Carroll County for more than 10 years, praised Mr. Barnes'

decision.

Mr. Shapiro said that preliminary hearings allow prosecutors and defense lawyers an added to chance to resolve minor cases before they "clog up the Circuit Court."

At least one Carroll judge -- who said that he was often surprised with the types of cases that came before him -- was pleased with Mr. Barnes' approach to using the grand jury.

"Frankly, I was concerned with some of the cases we got up here," said Judge Luke K. Burns Jr. "Many of them really didn't belong."

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