Grand jury secrecy spurs legislation to eliminate them

Opponents see grand juries as inherently unfair to defendants

By Virginia Black
South Bend Tribune

SOUTH BEND, Ind. (AP) — After a LaGrange County toddler’s beating death was ruled a homicide, investigators delivered their results to county Prosecutor Jeff Wible.

Wible convened a grand jury shortly after the girl’s March 2009 death, calling witnesses and presenting evidence relating to 15-month-old Alissa Guernsey.

That grand jury indicted the girl’s foster mother, Christy Shaffer, on two felony counts of neglect of a dependent.

In early 2011, Shaffer pleaded guilty to one count while insisting she did not hurt the girl under her care, and she was sentenced to 10 years in prison, six suspended. Then, in August 2011, Judge J. Scott VanDerbeck ordered Shaffer released after serving 77 days of her sentence.

Because grand juries by law operate in secret and the guilty plea meant that no evidence would be heard in an open courtroom trial, the public learned very little about what the evidence against Shaffer was.

A hearing out of the public view several weeks ago in LaGrange Circuit Court featured arguments over whether transcripts in that grand jury proceeding should be released as part of ongoing civil lawsuits in Alissa’s death.

That request for grand jury transcripts — which a judge ultimately denied — might serve to illustrate a growing debate: Is the use of grand juries in Indiana a necessary law enforcement tool, or is it inherently unfair to defendants and the public’s right to monitor how well our court system dispenses justice?

In Indiana, a prosecutor or a judge can convene a grand jury of six people and an alternate to vet a troublesome criminal case.

Typically, it’s a tool for prosecutors, who are granted a fair amount of leeway in issuing subpoenas to reluctant witnesses, compelling them to testify when they might not have been willing to speak with investigators.

Grand jurors can question witnesses themselves. Although the standard of a regular jury’s unanimous guilty verdict is based on “beyond a reasonable doubt,” a grand jury returning an indictment is asked to determine only whether it is more likely than not a defendant is guilty.

Everything surrounding a grand jury — the subjects, the testimony and even the grand jurors’ identities — is considered secret, with violators of those secrets facing potential misdemeanor criminal charges. If a grand jury does not return an indictment in a case, the public might never learn one was even seated.

That, and the fact that grand jury operation is weighted heavily in the prosecution’s favor, has compelled state Sen. Mike Delph, R-Carmel, to introduce a bill to the General Assembly for the second year in a row that would eliminate the use of grand juries.

Delph, a business attorney, said last week he thinks the bill will be tabled in favor of language creating a legislative study committee on the topic this summer, which would examine how grand juries and special prosecutors might be better used, or whether they’re necessary.

Delph said that over the years, he’s heard a growing concern over what he calls abuses of the system, where a prosecutor might call a grand jury instead of making a politically difficult decision.

“I think we’re shining the light on the grand jury system, which is a good thing,” Delph told the South Bend Tribune ( ).

If a grand jury chooses to pass down indictments — which, because the prosecution has so much leeway, often happens, he said — it can put more pressure on a defendant to plead guilty, and then the public is kept in the dark about what the facts of the case are.

“If you’re a target, or a prosecutor has their sights on you, it’s a very, very different, almost undemocratic situation, that you’re almost guilty until proven innocent,” Delph said. “We should allow public juries to rule the day.”

The state senator said he does not consider himself soft on crime.

“An individual charged with breaking the law should be charged with breaking the law,” Delph said, “but it should be done in an honest, forthright way.”