Is That Even Legal?

Are Grand Juries that Grand? When They Get it Wrong...

December 05, 2022 Attorney Robert Sewell
Is That Even Legal?
Are Grand Juries that Grand? When They Get it Wrong...
Show Notes

Imagine a bar fight. Imagine someone getting killed and someone getting indicted for the crime by a Grand Jury. Imagine now, that one vital piece of evidence – a clear cut self defense argument – is never presented to the Grand Jury by the prosecutor…Is That Even Legal?  A trial court said it was.  The Arizona Supreme Court said…no!

 Grand Juries are in the news every day. They are impaneled against politicians, business titans and others suspected of crimes.  Their job is to determine whether a crime was committed and whether the person being investigated likely committed the crime.

 The word indicted can end your career, your professional and even your private life. How does the Grand Jury process work? What happens when it doesn’t?

 The all too common saying that you can “indict a ham sandwich,” has a very distasteful meaning when you consider the impacts of being indicted.

 Your amazing host, Bob became very curious about this process…and particularly the story of the bar fight.  Attorney Jesse Smith, who won the appeal before the AZ Supreme Court – earning his client a new Grand Jury – is Bob’s guest. 

 Here is  more on the underlying case… WILLIS v. BERNINI

 From the AZ Supreme Court:

"In  this  case,  we clarify the  due  process  rights  of  a  person  under  investigation  before  a  grand  jury,  the  duties  of  a  prosecutor  to present evidence for the grand jury’s consideration in determining whether to  issue  an  indictment,  and  the  standard  for  what  constitutes  “clearly exculpatory” evidence, especially with regard to a justification defense.

 ¶2We  hold  that  the  Arizona  Constitution  guarantees  a  person  under grand jury investigation a due process right to a fair and impartial presentation  of  clearly  exculpatory  evidence  and that  a  prosecutor  has  a  duty, even in the absence of a specific request, to present such evidence to a  grand  jury.    We  also  affirm that  evidence  is  clearly exculpatory if  it  would   deter   a   grand   jury   from   finding   probable   cause   to   issue   an   indictment as initially stated in State v. Superior Court(Mauro),  139 Ariz. 422, 425 (1984).   

 Finally,  we  hold  that  clearly  exculpatory evidence includes evidence relevant  to  a  justification  defense  that  would  deter  a  finding  of  probable cause."

 Read more: https://www.azcourts.gov/LinkClick.aspx?fileticket=-q-5mzI4S0k%3D&portalid=45