送交者: 匆匆过客 于 2005-3-24, 22:20:35:
Aren't Juries Grand?
By RANDY COHEN
I'm on a grand jury. We've been given cases involving someone who views pornography on his computer behind locked doors and someone caught in the presence of marijuana. The assistant D.A. indicates that I shouldn't abstain from voting, but my conscience won't let me sleep if I make felons out of such people. May I vote not to indict? L.D., Fountain Hills, Ariz.
Ethically, you may. Legally, it's debatable. The attorneys I consulted were not unanimous, but most agreed that, unlike petit jurors, who must convict if the evidence warrants, grand jurors ''are entirely free to charge what the government proposes, to charge differently or not charge at all,'' as Claudia Conway, a capital defender with New York's Legal Aid Society, put it. And so, without disavowing the marijuana law, for example, you might honorably find it not applicable in this case. Another option you've overlooked: indict not for a felony but for a lesser charge.
One reason we use grand juries instead of going directly to trial is to forestall overzealous prosecutors. Just as a district attorney ''is not obliged to prosecute every crime or seek an indictment in every case,'' according to Donna Lieberman, head of the New York Civil Liberties Union, grand jurors enjoy similar discretion. Thus, a sensible and ethical grand jury would discourage a D.A. from throwing the book at every jaywalker in town while he ignored murderers. Grand jurors should not merely rubber-stamp the government's wishes but should act as the conscience of the community -- particularly important in a forum where the accused cannot present a defense or call witnesses or introduce evidence.
Such independence can be exercised ethically or unethically. Employing the more radical tactic of jury nullification in criminal trials, for example, some all-white juries in the Jim Crow South shamefully refused to convict white men for killing African-Americans.
But again, honorable lawyers differ. Barnett Lotstein, a special assistant county attorney in Phoenix, articulates the conservative (and not uncommon) position: ''The obligation and the oath a grand juror takes is to return an indictment if probable cause exists.'' Andrew G. Celli Jr., former chief of the New York State Attorney General's civil rights bureau, finds middle ground, allowing grand jurors to check a D.A.'s imprudence but not to invalidate the law, saying, ''You may not try to accomplish in the jury room what you've failed to achieve at the ballot box.'' Celli is persuasive: he respects the law but allows ethics to thwart its unwise application and you to calm a nagging conscience.
Copyright 2005 The New York Times Company