Indict A Ham Sandwich? The District Attorney Decides — An Essay

HYANNIS – Say I’m a ham sandwich, just minding my own business. And after an unfortunate series of events, it comes to appear to almost everyone that I have just committed a murder. But I didn’t do it. So what happens next.

Well, the district attorney looks at the evidence and decides whether I did it. If he thinks I committed the murder, then he puts the matter before a grand jury and presents the case against me.

The policeman testifies, all my enemies testify and even my childhood friend who has since turned against me testifies before the grand jury. The grand jury sees only one side of the case. Neither I nor my attorney gets to be in the courtroom.

The grand jury hands down an indictment and then I am on the fast track—actually slow track because the court system is painfully slow—to San Quentin or another similar facility, via a jury trial in which 12 of my peers will most likely find me guilty based on the prowess of the prosecutor and the tendency of a jury to believe what a prosecutor says.

But what if instead of being a miserable ham sandwich, I am perhaps a cucumber sandwich of distinguished pedigree or maybe a famous person sandwich like a turkey BLT club or even a law enforcement sandwich, like a roast beef hero?

And suppose the DA looks at the evidence and believes in his heart of hearts that I am not guilty or that there is ample evidence on both sides of the question. Then the district attorney turns to an “investigatory” grand jury process.

The district attorney has sole discretion in deciding which process to use.

The investigatory grand jury is a much longer process than the regular grand jury—taking, sometimes, many months. The grand jury is empaneled and hears a number of cases, but in a process that is different from a regular grand jury, they hear what is essentially the entire case. There are witnesses on both sides and evidence on both sides. And the witnesses who said I, the ham sandwich, did it are cross-examined aggressively to prove they were lying. And, low and behold, the grand jury can hand down what is called a “no bill.” That means I walk away, clear and free—no trial, no worries. And I go back to my life as a sandwich.

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 Types of Grand Juries: Regular or Investigatory

But, I wondered, as a ham sandwich, what if the district attorney’s opinion of a case is incorrect and he chooses, for example, an “investigatory” grand jury, which usually results in a “no bill,” instead of a regular grand jury, whose function is to determine whether there is probable cause to bring an indictment.

Or there is the opposite case. What if the district attorney chooses the regular grand jury, thinking the facts of the case are clear, and he is mistaken.

With all the interest in grand juries this fall, Cape and Islands District Attorney Michael O’Keefe was asked to explain the process as he sees it, first by this ham sandwich—er, reporter—and a couple weeks later at a forum about race and justice at Cape Cod Community College.

O’Keefe said of the two types of grand juries, “You would hope the DA brings good judgment to the question of, when do I employ those.”

But still, as an eminently indictable ham sandwich, I am for the first time understanding the immense importance of the district attorney’s judgment in these matters.

And I am not the only one aware of the power of that judgment.

At the recent swearing in of O’Keefe, the Honorable W. James O’Neill, First Justice of the Barnstable District Court, talked of the power of a district attorney.

“Truly, the power of the district attorney is an awesome power. They have the ability to decide what cases to bring, when to bring them and the power to decide whether to proceed or whether not to proceed,” O’Neill said.

On the other hand, some believe that power is too “awesome.”

Richard K. Latimer, an attorney in Falmouth who is outspoken on civil rights, said, “DAs work with police officers all the time. All arrests are made by police officers and that’s what DAs prosecute.”

Police officers serve as witnesses for cases brought by district attorneys, Latimer said.

He said that a special politically-independent prosecutor appointed by the court should handle any serious cases of police violence against civilians, for instance in a case where someone dies.

“If someone brings a complaint of excessive force, [the district attorney] has a conflict of interest,” Latimer said.

Latimer even made it personal—to me—your average ham sandwich. “A good DA can indict a ham sandwich, when they want to. When they don’t get those indictments, they don’t want to get them,” he said.

Before swearing in O’Keefe on January 15, 2015, Judge O’Neill gave a short speech. He said to those gathered, “We ask an awful lot of the prosecuting attorneys because they have the real decisions to make going to court. I say that as a judge. I think at times the district attorney certainly has more power than the judges do in terms of how cases are going to proceed through the system.”

As a ham sandwich, that phrase—coming from a judge no less—struck me as significant: “at times the district attorney certainly has more power than judges.”

I wondered why there is a grand jury system to begin with. Why not just use the trial system?

But O’Keefe said it is not a question of overriding the trial system. He said it is a question of ethics.

“We have an ethical obligation not to bring a case to a trial unless we believe that we have proof beyond a reasonable doubt. So the idea of, ‘Oh, let’s just put that police officer to trial.’ No,” he said.

“Or [bring] John Q. Citizen to trial because it’ll be easier and I won’t have to take the heat. No. Unless I am convinced that I have proof beyond a reasonable doubt, I am ethically bound not to put a citizen through that,” O’Keefe said.

He pointed out how damaging a trial could be for an innocent person.

“Think about what that does to a person’s life. Just think about that. That’s why we have a grand jury. They stand between the king and the citizenry, and we had grafted that from Old England into our jurisprudence and that’s a very important thing.”

Falmouth defense attorney Robert W. Nolan said he agreed with O’Keefe that there is an ethical obligation not to bring someone to trial without proof beyond a reasonable doubt.

“He should have an abiding conviction that person is guilty,” Nolan said.

Nolan, who was a Falmouth police officer for 28 years before becoming a defense attorney, said he believes it is appropriate for state police troopers assigned to the district attorney to investigate cases. If the case ends up before a grand jury, then at that point, it might be appropriate, depending on the circumstances, for a prosecutor from an off-Cape district attorney’s office to handle the case.

Nolan drew me, a ham sandwich, into the equation when explaining how the grand jury system works.

Nolan said that when it comes to grand juries, “Everyone knows the DA holds all the cards. The defendant is not there. The defendant has no counsel there. It’s the old saying, ‘You can indict a ham sandwich’ because it’s a one-way street.”

But he said once the grand jury has made its decision, the transcript is available for the defense attorney and that is the first place a defense attorney goes.

“That’s the first thing you do is read that transcript and present your defense based on that,” Nolan said.

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 Grand Jury Controversies

O’Keefe was reelected to his position as district attorney last November. He has been in the district attorney’s office, first as an assistant district attorney, then as first assistant DA and then as DA since 1982.

But this year, for the first time since he has held the spot of DA, he had an aggressive challenger, Richard Barry, whose campaign focused on questioning O’Keefe’s judgment.

O’Keefe won the election handily with 56 percent of the vote.

Shortly after the election, another district attorney across the country in Ferguson, Missouri was being scrutinized for his role in a grand jury delivering a “no bill” in the case of police officer Darren Wilson who shot and killed Michael Brown, an unarmed 19-year-old black man who confronted the officer.

One week later, another district attorney, this time in Staten Island, New York, was also being scrutinized for a grand jury’s failure to return an indictment. In that case NYPD Officer Daniel Pantaleo was caught on video choking unarmed Eric Garner, whose crime was repeatedly being caught selling loose cigarettes.

There were protests across the country and counter-demonstrations after two police officers were shot in New York.

At the Cape Cod Community College forum that took place on December 9 on the topic of race and justice, O’Keefe talked about grand juries, why they are used and what the process is for using them.

In discussing the “investigatory” grand jury, the kind that was used in both the Ferguson and Staten Island cases, he said he had used it several times over the years.

One example he gave was the murder trial of a woman who killed her husband. The evidence showed the husband had been brutally beating his wife for years in a shocking case of domestic violence. The grand jury in that case returned a “no bill” against the woman.

So, being a ham sandwich and all, and concerned that I myself could be indicted, I asked O’Keefe how a district attorney goes about deciding which type of a grand jury process to use. Because it seems as though, if a district attorney wants to indict, he does one kind of process and if he wants a “no bill,” he does another kind of process.

O’Keefe told me that, yes, the DA plays a critical role.

“If you have a situation where factually there is very compelling evidence on paper on both sides of a question, you want a fact finder to resolve those factual differences,” he said.

By “fact finder,” he meant an investigatory grand jury.

O’Keefe said in those cases, in which there is compelling evidence on both sides, in terms of deciding whether to bring charges, “I’m a little uncomfortable doing that myself. I’m much less troubled by it, if the facts are clear.”

But again, as a ham sandwich, I’m thinking to myself, sometimes the facts may appear clear, but they are really covered with mustard.

O’Keefe continued his explanation of why he would choose one type of grand jury over the other. “So there are some factual patterns where it’s, we’re going to do this perfunctory, if you will, presentation of evidence because the facts are clear on the question of, is there probable cause to believe a crime was committed.”

That’s the quick and dirty, if you will: a regular grand jury. That’s the one the DA does when he believes the person is guilty.

Then there is the other one, the “investigatory” grand jury.

And in that case, O’Keefe said, “There really are legitimate factual disputes here that if a fact finder resolves them one way, the case would go that way, and if the fact finder resolves them the other way then there might be a ‘no bill.’”

He said of the investigatory grand jury, “It’s under those circumstances that I want the wisdom of 12 of those 23 people to come together as a group and say, ‘We believe that. We don’t believe that.’”

O’Keefe said, “You would choose between those two different methodologies of the use of the grand jury to resolve very significant factual disagreements.”

 

 The Swearing In

A few weeks after the forum at Cape Cod Community College, O’Keefe was being sworn in as district attorney in the auditorium at Dennis-Yarmouth Regional High School, which served the dual purpose of a lesson for the teens about the role of district attorneys.

Performing the actual swearing in was longtime Barnstable District Court Judge James O’Neill.

O’Neill said he was the first assistant district attorney in the Cape & Islands District 40 years ago when the district was first formed under District Attorney Philip Rollins.

O’Keefe had begun his law enforcement career on the Cape as a police officer in the Dennis Police Department. He had then served as an assistant district attorney under Rollins for about 10 years, rising to the level of first assistant district attorney before Rollins retired.

In 2002, O’Keefe ran for and won the seat of Cape and Islands District Attorney. Last November, he was elected to the seat for a four-year term for the fourth time.

O’Neill ended his speech at O’Keefe’s swearing in with these words: “We all work toward the same goal—justice. We may disagree a lot at any given time on what is justice. But that is what the goal is.”

As an indictable ham sandwich, I was glad to hear the goal is justice. But I remained curious about indictments.

 

 Indictments Aplenty—Except . . .

I found some figures on indictments that reporters more intrepid than a ham sandwich came up with.

Turns out, regular grand juries—as opposed to the investigatory kind—almost always indict.

The website fivethirtyeight.com, which focuses on statistics, puts indictments in federal cases as occurring in the vast majority of cases. In 162,000 federal cases brought in 2010, grand juries did not indict in only 11 cases.

O”Keefe agreed that the percentage of indictments that district attorneys get is “probably” pretty high.

But when a police officer is involved, the stats swing the other way.

After the Staten Island grand jury failed to hand down an indictment in the Eric Garner case, the New York Daily discovered that in 179 New York Police Department cases, only three officers were indicted. Note that statistic has to do with police officers—the roast beef hero, if you will, of sandwiches.

Latimer is among those who have speculated that one reason why police indictments are infrequent may be the close relationship between prosecutors and police.

That close relationship is why he and others believe that district attorneys should always recuse themselves from cases involving police.

Latimer said it should not be up to a district attorney who works closely with police officers in his county to make the decision of whether or not to prosecute a police officer.

“You should take the facts objectively without editing. Is there probable cause to charge this person. Period,” Latimer said.

“I know it’s discretionary or not to bring charges to a grand jury. What informs that decision varies from individual to individual. But I do know that DAs all have an inherent conflict of interest,” Latimer said. “The best way to get around it is for courts to appoint a special prosecutor.”

 

 The Chatham Case

On the Cape in the early hours of New Year’s Day 2015, a Chatham police officer in his cruiser ran over a young man who may have passed out in a roadway. It appears that the young man died from injuries from being run over by the police car.

There is no word yet whether the officer will be charged or whether a grand jury is even looking at the case.

Latimer said the Chatham case is the type of case that should be looked at by a special prosecutor. “I’m not saying the cop did anything on purpose, but it might well be a case of criminal negligence,” he said.

Whether to bring those charges is up to the district attorney to decide.

Nolan recalled the controversial case on the Cape in 1988 when Mashpee Police Sergeant David Mace shot David C. Hendricks, a Mashpee Wampanoag Tribe member, after a high speed chase. In that case, the district attorney’s office, then run by Rollins, used an inquest, which is a judicial hearing to determine facts relating to a case. The inquest cleared Mace of wrongdoing.

In the Chatham case, it will be the DA who decides whether to issue a criminal complaint, to hold an inquest or to put the case before a grand jury, either a regular one or an investigatory one.

But again, what if the district attorney is wrong in how he interprets the guilt—or innocence of the people—or sandwiches—involved?

O’Keefe had an answer. “Is there a possibility in human endeavor that humans are going to disagree? Yes, there is. Yes, there is,” he said.

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