Leaking grand juries and the Michael Jackson, Phil Spector cases
By Burton S. Katz/Retired L.A. Superior Court Judge
A historical tension exists between the grand jury’s need for secrecy and the media’s quest to remove it and to make the process more transparent. How we the public deal with that information informs our sense of justice.
Bruce Cutler, Phil Spector’s lawyer, angrily denounced the release of the secret grand jury transcripts that contain alleged testimony that Spector had admitted to having accidentally shot Lana Clarkson. “Much of it contains lies, half truths and slanted testimony and is biased, prejudicial and unfair,” Cutler said. Spector is apparently claiming that Clarkson committed suicide and that she had died of a self-inflicted mortal wound.
Thomas Mesereau Jr., Michael Jackson’s attorney, also denounced the release of the Jackson grand jury transcripts, which also contain damning testimony allegedly claiming that Jackson committed specific acts of sexual molestation on a 14-year-old child and insisted that the child, who has only one kidney, consume alcohol provided by Jackson.
And if these grand jury disclosures were not enough, the San Francisco Chronicle released part of the secret grand jury proceedings involving the alleged illegal use of anabolic steroids by superstar athletes. Among those implicated: Barry Bonds, Jason Giambi and Marion Jones. The common link among each of these cases is the grand jury. Under California law, the prosecution can proceed to charge a defendant with a felony crime by way of the preliminary hearing process in which a defendant is given the opportunity to confront and cross examine his accusers, or through the grand jury indictment process where the defendant is not able to face his accuser, challenge the evidence nor cross examine any witnesses.
As you may recall, actor Robert Blake had a lengthy preliminary hearing. His then attorney Thomas Mesereau Jr. (now Jackson’s lawyer) effectively tested the mettle of the prosecution case and challenged the testimony of key prosecution witnesses. He “locked in” testimony under oath that may ultimately weaken the prosecution’s case. Blake, who had been incarcerated for nearly a year, was released on bail at the conclusion of the preliminary hearing. The public came away with two possible views of the prosecution evidence. One, that it was a strong case, or two, that the case was weak, because the defense had effectively attacked the credibility of key witnesses, including their alleged biases, motives to fabricate and lack of knowledge of the true facts.
In the grand jury proceedings, the only thing that is presented is the prosecution side of the case, unless there is evidence known to the prosecution that may tend to exonerate the defendant. And that is what the defense attorneys are screaming about.
Grand juries have been around for centuries. England established the grand jury system as a bulwark against the tyranny of the Crown. Noblemen needed protection against wanton and capricious charges that were often brought against them to justify the Crown’s seizure of their fortunes and assets. Or worse, their imprisonment and beheading on the basis of false and trumped up charges.
Why favor a grand jury over the preliminary hearing? Because grand jurors are presented only with the prosecution’s case, it allows the district attorney to determine whether a case will have enough to justify a trial. It also protects vulnerable witnesses such as children, gang or mafia informants from public exposure until the district attorney can solidify its case and protect its witnesses from outside threats and influences.
Our federal and state constitutions provide similar protections under the grand jury process. But there are some chinks in this bulwark against tyranny that has served us well for more than two centuries. First, the fairness of the grand jury process is directly attributable to the fair play of the prosecutor. Having presented a number of cases before the grand jury, I know first-hand how easy it is to skew the testimony or the interpretation of the evidence in favor of an indictment; how easy it is to go “off the record” in response to a question of a grand juror.
In Jackson and Spector, we have the untested testimony of some witnesses. Admittedly, many times that is more than enough, especially where the prosecution has credible corroboration in the form of fingerprints, ballistics or other solid testimonial evidence. But where the testimony is of a purported sole eyewitness to the crime or a sole witness to an alleged admission or confession, or to an important circumstantial fact, then we must be very careful not to place too much credence in the grand jury transcript, standing alone. Especially when a grand jury need only find reasonable cause (not proof beyond a reasonable doubt) to believe a crime was committed in order to indict.
The media today is more powerful and ubiquitous. It permeates every facet of our lives. It tells us what to buy, how to look, what to eat and what to think. Maybe it’s time we do the thinking.