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Saturday, July 21, 2007
The Legal Significance vs. Reputational Significance of an Indictment

ESPN columnist Mike Sando has an excellent column on how many have rushed to presume Michael Vick's guilt based on the indictment and its support documents, when there is a significant chance, based on the very demanding criminal conviction standard of "beyond a reasonable doubt" and on the fact that the government's evidence has not yet been studied or challenged, that Vick will be found not guilty.

As I wrote about a few days ago, grand jury hearings are typically secret and one-sided in favor of the government. The prosecutor decides which witnesses to call and which witnesses receive immunity. The basic questioning is done by the prosecutor, and the defendant doesn't even have a right to have his or her attorney present. Even worse for the defendant, an indictment only requires "probable cause," meaning more likely than not--a far cry from "beyond a reasonable doubt" for a criminal conviction. There has been much criticism of grand juries as unfair devices for the prosecution, and that they have been misused as tools to shame defendants, especially in high-profile cases.

Sando interviews a number of criminal lawyers for his column, including Maryland-based defense attorney Jonathan L. Katz, who tells him:
The prosecutor can get an automobile indicted. The prosecutor puts in the witnesses that he wants and then at the end he says, 'Look, here's an indictment, please agree to it. It just requires the grand jury members to find there is probable cause to believe that a crime occurred. Well, probable cause is not much more than a hunch.
Sando also interviews Charlottesville, Va., attorney Neal Walters, a regular lecturer at the University of Virginia:
In point of fact, it's incredibly rare for a grand jury not to issue an indictment. It makes good drama on TV, but in that sense, if the U.S. attorney goes to grand jury, it's highly likely they are going to get an indictment.

My former criminal investigations professor, Charles Whitebread, is also interviewed by Sando (some of you may know Professor Whitebread from the BarBri videos, and for those of you taking the bar exam next week, good luck):

The main thing you should watch out for is convicting the guy based on a grand jury indictment,. People hear 'grand jury' and think, 'Oh, what a grand bunch.' They think he's guilty.

For the rest of Sando's column, click here. He also raises a number of good points about how Commissioner Roger Goodell has likely handled this situation well.


I've heard that 95% of federal grand jury indictments in the Richmond district lead to convictions.

Anonymous Peter -- 7/21/2007 5:06 PM  


Thanks for your comment. That would be a very high percentage, but if true, it would certainly not bode well for Vick.

Then again, Vick will likely enjoy litigation resources that few other defendants could afford, so the percentage may not be as predictive in his litigation as it would for the typical Joe who is indicted.

Still, an interesting point.

Blogger Michael McCann -- 7/21/2007 5:34 PM  

Your opening paragraph implies that the public should adopt the "beyond a reasonable doubt" standard for determining whether a person has in fact committed a crime. That makes little sense. Surely, the O.J. Simpson civil verdict is a better indicator of whether he is a murderer than his criminal trial.

That being said, an indictment is a flawed procedure for factfinding, but it's not meant to be a final adjudication. Rather, it's meant to test whether the government can possible prove its case, or whether it's engaged in simple harassment. In this way, it's akin to a warrant, which, as you know, is also based on an ex parte proceeding. The point of both is to put a (hopefully) neutral third party between the individual and executive power. Your posts would be better served by noting the limited purpose served by these proceedings.

Finally, don't you think it's odd that you quote (or perhaps the article quotes) only defense attorneys and a law professor? There isn't one prosecutor out there who might have something useful to say about grand juries?

Anonymous Anonymous -- 7/21/2007 8:03 PM  

Thanks for posting this blog entry. My further views related to this ESPN article are at today's Underdog Blog, at markskatz [dot]com [forward slash]justiceblog . Have a great week. Jon Katz.

Anonymous Jon Katz -- 7/23/2007 4:48 AM  

Great article Mike. ESPN has all my friends clamoring about how Vick is headed to prison now. I can now send them this link instead of the wikipedia article on "grand jury" that actually contains the ham sandwich quote.

I heard that 90% quote from the AAA tow truck driver yesterday also. Wonder where thats coming from...

Anonymous Cory Carano -- 7/23/2007 10:54 PM  

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