Regardless of what side of the political spectrum you are on, the New York grand jury indictment of a former president is big news. So big, it’s never happened before.
Donald Trump is a lightning rod for controversy and criticism. He seems to bask in controversy, using it to ignite or inspire his base. Can two things be true at the same time? Can the indictment be justified and politically motivated? I believe they can.
The decision to bring charges against Trump might be politically motivated. However, whether you are the biggest Trump fan in America or his biggest hater, you must admit that his own behavior (perhaps criminal) and questionable business practices have brought us to this moment.
I recently wrote an OP ED suggesting that this indictment must be considered in the context of all the bad things he’s done over the years. Trump University, racist rental practices, sexual misconduct, four business bankruptcies, anti-trust issues, campaign finance issues—the list goes on and on. To a large degree, he has brought this grand jury probe upon himself.
However, a prosecutor still must present his or her case to a group of ordinary citizens and demonstrate that there is probable cause to believe a crime was committed and that the person under investigation is the one who committed it. This standard of proof is similar to the standard used by police to make an arrest—it is far lower than the “reasonable doubt” standard necessary to convict the accused. The message? Even though there has been an indictment, this case still has a long way to go.
A former NY state judge once claimed that district attorneys have so much influence on grand juries, they could get one to “indict a ham sandwich.” But that didn’t prevent a grand jury from declining to indict, for instance, Ferguson, MO police officer Darren Wilson, who shot Michael Brown to death. That decision prompted critics to suggest that Missouri citizens could indict a ham sandwich, but not a white police officer. In Colorado, between 2010 and 2020, prosecutors took at least ten cases involving police shootings to grand juries, but only secured indictments in two. The bottom line? Getting an indictment is rather common, but it is not a slam dunk.
You might be wondering: Why use a grand jury rather than having the cops pursue evidence, make a solid case, secure an arrest, and conduct a preliminary exam?
Here’s a Grand Jury 101 primer:
1. A grand jury can sit for multiple cases, for periods of a year in state court. Jurors represent a cross-section of the community and are chosen from the same pool that populates trial juries.
2. Only the prosecution presents a case—thus, the grand jury is only hearing one side of the case. Strict rules of evidence do not apply and there is no judge to rule on admissibility. Thus, evidence that might be inadmissible at trial is heard by the grand jury.
3. 48 states have some type of grand jury system. New York is not unique in this regard.
4. Many states mimic the federal system, but New York is not one of them. In New York, for instance, the prosecutor is required to produce witnesses. The grand jury cannot rely on police or investigators to summarize witness testimony.
5. The decision to indict need only be a majority (sometimes it must be a ‘supermajority’). Contrast this with a trial jury which must render a unanimous verdict.
6. The decision to indict is not whether the accused committed the crime, it is only to determine whether there is probable cause (guilt is ‘more likely than not,’ 50.5-49.5 is enough) to bring charges.
7. Grand jury sessions are conducted in secret. They are not presided over by a judge— the grand jury foreperson presides. Witnesses may not be represented by an attorney and they are not cross-examined. Jurors and prosecutors are the only ones permitted to ask questions. Witnesses may consult with attorneys outside of the hearing room. Testimony is given under oath, subject to the penalty of perjury.
8. The prosecution presents his or her case, without any presentation of contrary evidence, and the grand jury votes to determine whether there is sufficient evidence for an indictment. If the jury votes to indict, as it did in Trump’s case, a criminal case is initiated.
9. Indictment rates are high, probably in the 90% range.
So, why would a prosecutor choose a grand jury hearing over a preliminary hearing? There are a few reasons.
A preliminary hearing takes longer. Witnesses are subject to cross-examination, thus a timid witness would rather testify in front of the grand jury. A grand jury also permits a prosecutor to test the evidence and/or a witness’s veracity/composure in secret. Investigator and witness identities are protected for their safety. The evidence is kept secret, a positive for a public figure like Trump, so his culpability is not pre-determined or affected by press coverage.
Witch hunt? Appropriate prosecution? We will see. Alvin Bragg must prove his case in court, not in the media, to 12 ordinary citizens, beyond a reasonable doubt. That burden of proof is much higher—a defense case will be presented to that jury. Whether you like or despise Donald Trump, he is innocent until proven guilty, but he is not above the law.
Let’s hope for a fair, impartial trial and leave the politics for the politicians.
Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the headlines, realistic fiction that speak truth to power and champion the rights of citizens in our justice system. These novels are dedicated to the social justice movement. They educate, spark discussion and inspire readers to action. One of these novels, Betrayal High, was written in response to school shootings. For more information, please visit www.markmbello.com. Mark also hosts the Justice Counts podcast with Lean to the Left editor & publisher Bob Gatty, presenting bi-weekly interviews focused on social justice.