“District attorneys now have so much influence on grand juries,” retired judge Sol Wachtler told the New York Daily News in 1985, “that, by and large, they could get them to indict a ham sandwich.”
I’ve yet to see any public comment from Wachtler, now 95 years old, on a grand jury’s August 26 refusal to indict one Sean C. Dunn for THROWING a sandwich (maybe even a ham sandwich) at federal occupation troops in Washington, DC after giving them a well-deserved, if maybe a little alcohol-driven, verbal dressing down.
“Grand jury nullification” seems to be having a moment. Earlier in August, DC US Attorney Jeanine Pirro tried and failed no fewer than three times to convince a grand jury to indict Sydney Lori Reid for “assaulting or impeding federal officers” after an FBI agent scraped his hand on a cement wall as he assaulted her when she tried to get video of ICE thugs abducting an immigrant.
“Jury nullification” usually involves a “petit” jury acquitting a defendant at trial, as Oliver Wendell Holmes put it, “in the teeth of both law and facts.”
The jury may unanimously believe that the defendant did some particular thing, and unanimously know that thing is against the law, but also unanimously dismisses the law itself as immoral or badly applied.
The practice pre-dates American jurisprudence, and the constitutional prohibition on “double jeopardy” means that the defendant can’t be re-tried. “Not guilty” is forever.
Well, sort of. Disappointed prosecutors often find other charges to file, or hand the same facts over to other levels of government for different framing (“he was found not guilty of murder, but now we’re charging him with violating the civil rights of the person he murdered”).
And unfortunately, as noted above, prosecutors can bring the same case before a grand jury (or more than one grand jury) over and over until they finally find enough servile citizens in one place to get the indictment they want … or just “re-charge” the same allegation as a misdemeanor if grand jurors won’t indict for it as a felony.
That seems to me to violate the Fifth Amendment’s prohibition on “any person be[ing] subject for the same offense to be twice put in jeopardy of life or limb.”
The whole purpose of the jury system, including grand juries, is to constrain the power of government instead of just letting prosecutors and police throw people in the slammer at will.
When a government actor wants to deprive someone of freedom — or even of life itself — that government actor should get one, and only one “bite at the apple.” As soon as a jury (petit or grand) says “no,” it should be the end of the matter.
Thomas L. Knapp (X: @thomaslknapp | Bluesky: @knappster.bsky.social | Mastodon: @knappster) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.
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