Mitigating Malice - What the Prosecutor Must Explain to a Grand Jury and Why

An educated citizenry is a vital requisite for our survival as a free people.
- Thomas Jefferson 

Indictment by grand jury, duly drawn from the community, sought to limit direct accusations by government officials.  Yet, grand juries have become an appendage of the Executive Branch of government which is often a tool of the Legislative.  The Fifth Amendment to the United States Constitution, provides for indictment by grand jury; it is deemed to be incorporated to the states via the Fourteenth Amendment.  But, in Massachusetts, with a constitution predating the United States' by almost a decade, the necessity of indictment by grand jury was not mentioned.  Federalist John Adams, the author of the state constitution, inserted the phrase, "the law of the land" into the Declaration of Rights Art. 12 which has been cobbled together with statutes and rules to establish a mandate for the practice.

Presuming the requirement for a body of people, rather than a government official, to indict, there lingers a question of responsibility: for the people to determine probable cause, must the Commonwealth present mitigating evidence?  In a split decision remarkable for the persuasive value for each of the three markedly different judicial opinions rendered, the Supreme Judicial Court tackled the question of whether the status of the target of a murder investigation as a juvenile alters the framework thereby requiring the presentment of mitigating evidence.  The short answer is that when a juvenile is charged with murder, the prosecutor has a duty to instruct on appropriate defenses and mitigating circumstances.  While the circuitous route to this conclusion is not wholly satisfying, the ramifications may lead to a slaking surfeit of historical magnitude.

In reaction to a spate of younger and younger members of society inflicting more and more violent offenses, Massachusetts law on juvenile justice radically changed in 1996.  Before then, a juvenile court would hold a two part hearing to determine whether the individual would be tried in juvenile or adult court; this affected a number of aspects of the trial as well as the sentence.  The new law altered several factors related to juveniles, but the one in question solely relates to murder.  Murder is a crime committed by adults and therefore those who are accused are indicted and tried as adults for all purposes.  The sentence for murder in the first degree is mandatory life with no possibility of parole (still true "on the books" for juveniles despite Miller v. Alabama) and the sentence for second degree murder is mandatory life with the possibility of parole.

First, the Supreme Judicial Court unanimously agreed that sufficient evidence had been presented to the grand jury; a conclusion in direct contradiction to the Superior Court judge who tossed the indictment. From there, the justices embarked upon three journeys which could not be more different or more interesting.  Justice Spina authored the dissenting opinion (joined by Justices Cordy and Ireland) which essentially averred the limited role of the grand jury and the power of the Legislature to fashion appropriate statutes.  Presentment of sufficient evidence for the grand jury legitimately to find probable cause to arrest for second degree murder satisfies any and all requirements: no special rules were necessary dependent on the defendant's special circumstances or the particulars of the offense.  Any other issues must be sorted out at trial.

The trial, claimed Justice Lenk, is the crux of the problem.  Weaving in recent Eighth Amendment jurisprudence and the traditional safeguards provided to juveniles, she noted that the troubling part of the accusation is that the charge itself decides how and where the case will proceed.   Because indictment for manslaughter retains the matter in juvenile court and affords the young defendant with protections unique to his circumstances, the grand jury should be so apprised.  The grand jurors should have sufficient information to indict for the proper offense in order to ensure a fair trial.

Justice Gants goes further (joined by Justices Botsford and Duffly) claiming that when prosecutors seek a murder indictment of any individual of any age and there are mitigating circumstances rising to the level that, if concealed from the grand jury it would impair the integrity of the proceedings, the government must instruct on the elements of second degree murder and on the legal significance of the mitigating circumstances.  Indeed, the decision says, "[u]nder Art. 12 of the Massachusetts Declaration of Rights and G.L. c. 263 §4, a defendant may not be indicted for a felony unless a grand jury, based on sufficient evidence, find probable cause..."  The statute is clear, the constitutional provision is not.  Either way, the point this opinion makes is that presentment of mitigating circumstances is meaningless without explanation to a lay jury and that the prosecutor also must conduct some investigation prior to presentment for indictment.  Only with the full picture can a grand jury indict properly. 

All three are thoughtful, well-reasoned and persuasive positions.  In essence: 

Justice Spina's conclusion is that the legislative determination, despite the reasons for treating juveniles differently, is not inappropriate for accusation: all mitigating evidence will be presented at trial and so it will all come out in the proverbial wash.  The role of the grand jury is not to parse but to realize whether probable cause exists or does not exist.  Unspoken is whether if grand juries must hear all mitigating evidence to determine probable cause, must a judge issuing a warrant hear such evidence as well and under what conditions does the minimal burden of probable cause require a complete picture?  That is, even assuming the ill conceived legislative directive, the response is not to place new constraints on an accusatory body which traditionally only heard evidence from one perspective.  

Contrasting that is Justice Gants who alludes to the investigatory history of the grand jury as a body separate from the elected or appointed government.  In this model, the grand jury is not just an accusatory arm of the government, but it seeks to establish and endorse community values separate from any desire of elected officials to prosecute.  These American roots run deep as the grand jury requirement post dated the travails of John Peter Zenger who was accused and arrested by government officials without input from the people.

While Justice Lenk takes an entirely different tack by incorporating the special circumstances of juveniles, supported by persuasive scientific research.  Her decision seeks to ensure that the grand jurors have a complete picture only as to this special population because the charge itself, in the hands of the Commonwealth alone, removes protections that society seems to want in place.

The overall effect of Commonwealth v. Walczak, 463 Mass. 808 (2012), without even trying, raises the spectre of jury nullification, an historical bulwark against tyranny.  And, it raises it in the accusatory phase of the proceedings.  Checks and balances of and by the three branches of government tempered by public sentiment establish the foundation upon which our republican system functions and these three approaches highlight this struggle.  Historically, investigative and accusatory grand jurors knew the penalty for the crimes they indicted.  They knew that their secret determination on probable cause could result in a public hanging.  But, as a majority of the Supreme Judicial Court expresses, grand jurors today are wholly unaware of the consequences of their accusation.  They have a limited role to conclude whether or not - mitigating evidence notwithstanding - the low threshold of probable cause has been met.  It is as though the powers that be do not want the people - there to protect against an authoritative government - to know the magnitude of this role.

This very approach has allowed for harsher and harsher sentences to attach to these offenses with fewer and fewer people apprised of the truth.  Putting aside the narrow majority related to juvenile murder accusations, query whether ordinary people would indict for crimes if they were provided with the aggravating circumstance that a conviction would result in a particular outcome.  Would it alter the process if grand jurors were given the range of sentencing options, particularly if there is a required sentence on any charge?  What if they were provided with the cost of incarceration per year?  To conclude that this is not the role of the grand jury is false.  Massachusetts has no constitutional provision save "the law of the land" (which has been deemed code for due process of law); the statute does not prohibit investigation and, indeed, encourages it.  If the grand jury is not a glorified arm of the Executive Branch enforcing the often draconian pronouncements of the Legislative Branch but is, indeed, an independent body, then isn't this information appropriate and even required?

In addition to the long and illustrious history of jury nullification for petit juries, there is a history of jury nullification for grand juries as well.  When Americans were not so afraid; when Americans were interested in the truth; when Americans still nursed their revolutionary battle wounds and experimented boldly with self governance, they disavowed rules and regulations that did not comport with their own sensibilities.  To do otherwise would be treason itself.  Scores and scores of people today bluster about the Constitution (they often have not read or understood) while 21st Century thought seeks guidance from 18th Century wisdom but few talk about the power of people to effect change by fighting back as jurors, grand or petit.  Indeed, our criminal justice forum has limited and constrained the voice of the people in ways unimagined by the Framers.

The federal Constitution twice protects the right to a jury trial for criminal defendants (three times if one counts interpretations of the Fourteenth Amendment granting independent due process of law) and it did so with a backdrop of jury nullification when enlightened thought embraced the law of the land.  The notion of independent townsfolk indicting (or not indicting) those facing a loss of liberty spoke volumes about what the new democracy intended.  That world, unlike ours, was one of limited voting opportunities (constrained primarily by property); all federal officials were indirectly elected by a relatively small enfranchised populace.  The voice of the people resounded in the courts where it now echoes in silence as too many cases resolve by plea (often dependent on grievous sentencing parameters) and courts prohibit juries from learning the consequences of the verdict.

But a majority of the Supreme Judicial Court, perhaps without even realizing it, just opened the door to raising and demanding that the grand jury be provided information on a variety of topics related not just to mitigating circumstances for juveniles, but also aggravating circumstances of the indictment itself.  The decision begins the conversation related to what the grand jury must know before it can accuse fairly.  This slight daylight allows for resurrection of the grand jury asserting its unqualified right not to indict. This is particularly vital where the course of procedures and the outcome depend on the accusation such as, for example, when a minimum mandatory sentence attaches to a particular charge.  The same clamor for voting rights must extend to juror rights: the beliefs of lay people representing the community matters.  There is no possibility that they will understand the ramifications of their decisions unless they are so instructed.

The question is not whether, in a democratic republic, juries, grand or petit, should be afforded the opportunity to correct an overreaching Legislature or an aggressive Executive.  The question is why the people who have created the laws and set the policies tremble in fear of what the populace will do with knowledge once they obtain it.