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February 12, 2018

Interesting tales of a local grand jury that decided some drug cases were not as criminal as a ham sandwich

This recent local article from Arizona, headlined "Tucson grand jurors rebel against drug prosecutions," provides an interesting report on some interesting work by a local grand jury.  Here are highlights:

You may have heard that saying: If prosecutors want to, they could get a grand jury to indict a ham sandwich. It’s a knock on how much control prosecutors hold over the grand juries to whom they give evidence for possible indictments.

The 269th Pima County Grand Jury could not be controlled like that.  That 16-member grand jury met from July to October last year, one of two county grand juries meeting twice a week in Tucson at the time.  But this one was led by a criminal-defense attorney and populated by freethinkers who took to heart their role as “conscience of the community.”

They went so far as to decline to indict people even though there was enough evidence to show probable cause, foreman Natman Schaye and others told me. That, in essence, is grand-jury nullification — not carrying out the law because, in the jury’s opinion, it is unjust.  “There were cases where we felt like, maybe there’s probable cause, but this is not something that we believe should result in a felony,” Schaye said.

Rick Myers, a well-known Tucsonan who is a member of the Arizona Board of Regents, also was on the Notorious 269th. What bothered him was the many cases of small quantities of drugs that were charged as Class 4 felonies, as state law dictates. He said he began making a distinction between what’s actually a “crime” and what’s “breaking the law.”

The reason, another grand juror, Jodi Kautz, said was: They were presented with possession cases involving drug amounts as tiny as 2/100th of a gram, a trace amount. “We left every day frustrated, and frustrated for society,” Myers said. “There’s a whole lot of people getting charged for things that are not hurting other people.” As a grand juror, he said, “You want to not just be a rubber stamp. You want to do what’s right.”...

Deputy County Attorney Malena Acosta, who runs the grand juries, and Thomas Weaver, the chief criminal deputy, told me the number of drug cases is a function of the number of arrests by police. “We respond to what comes through the door,” Weaver said. “If we’re getting more cases presented to us, then there will be more cases charged.”

He also noted that a significant proportion, maybe half, of the cases brought to them are never brought to a grand jury, because of problems with the cases. And it’s not as if the prosecutors have a choice on how to charge the possession cases involving any drug except marijuana.  Meth, cocaine, heroin — whatever someone has, and however much, that will earn them a class 4 felony.  Marijuana possession can be treated as a misdemeanor.

LaWall explained her thinking on charging decisions: “If police officers bring us cases, and the evidence is there, we make our decisions based on legal reasoning. If the evidence proves a crime was committed, we have an ethical obligation to follow the law.”  She also noted that her office has created various programs that are alternatives to prison for drug offenders, but they occur after they are convicted, so they’d have to be charged to take part.

As to the grand jurors’ decision to reject some cases with adequate evidence, Acosta said that really isn’t their place.  They take an oath to follow the law before taking their seats, she said. “If somebody has a particular agenda, I suppose they can go to the Legislature and say, ‘We don’t like this law, maybe you should change it.’ But the grand jury isn’t the place for that kind of activity,” she said.

Joel Feinman was happy to hear of grand jurors exercising their usually unused muscles.  The Pima County public defender has been compiling data on the steadily growing number of felony cases and drug prosecutions in an effort to reduce jail stays and prison sentences.  His most stunning discovery concerned the amount of drugs possessed by those charged in the 725 felony drug cases his office has received in the last five months.  The median amount in all those cases, he said, was 0.496 of a gram.  “Felony filings are at an all-time high, felony drug filings are at an all-time high — and are a plurality of the cases — and the median amount is half a sugar packet,” he said.

That’s what bothered some of the grand jurors of the Notorious 269th.  “The drugs are the ones that bug me,” said Myers, the regent. “I feel like we have a puritanical view of even a minuscule amount of drugs.” Said Schaye: “It’s tremendously frustrating. We put far too many people in prison, and it does no good.”... “We all took it extremely seriously, because these are people’s lives. A felony really screws you over.”

February 12, 2018 at 09:02 PM | Permalink

Comments

It's refreshing to see reasonable people take charge of their local lives and make decisions untainted by LE, media, politicians, lawyers and other government idiots on the taxpayer payroll. The hard look at the American way of self-deception has to start somewhere. It's not what we don't know that harms us as much as what we know that isn't so. The product of America's exceptional educational system - not.

The American axiom that "we are a nation of laws ' and that the Constitution protects us is a lot of malarkey. We were not given a Bill of Rights as much as we were sold a Bill of Goods. An important thing to remember on the day after the Birthday of the founder and leader of this great deception.

Posted by: albeed | Feb 13, 2018 6:36:34 AM

Prosecutors never have an ethical obligation to prosecute a case if there's a crime (likewise, there's no ethical obligation to decline prosecution if prosecution would be unjust). In many cases, laws are crafted very broadly. I've always suspected part of the reason for this is to allow ease of proof and rely on prosecutorial discretion to weed out the inappropriate cases. But many prosecutors don't believe it's part of their role to use that discretion when the facts don't warrant prosecution. Hence, why you ended up with rebellious Grand Jurors.

Posted by: Erik M | Feb 13, 2018 1:17:14 PM

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