The decision by Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE to impanel a grand jury in the District of Columbia raises some intriguing questions, which are unlikely to be answered by the secretive special counsel.
The first and most obvious is why a second grand jury was needed at all. There is already a grand jury in Virginia, which is investigating aspects of the so-called Russian connection. That grand jury is fully capable of doing anything the new grand jury can do. It can issue subpoenas for additional documents, summon additional witnesses and consider additional aspects of the case or cases being investigated by Mueller.
So if grand juries really were independent decision-makers of the kind contemplated by the Bill of Rights — if they truly served as a protection for defendants against overaggressive prosecutors — then it would make no sense for a special counsel to bifurcate its work into two separate grand juries. A prosecutor would want one grand jury to hear all the evidence before deciding to indict. But all experienced lawyers know that today’s grand juries are merely 23 chairs, with 23 puppets, who do whatever their puppet-master, the prosecutor, wants them to do. As the former chief judge of New York famously put it, a prosecutor can get a grand jury to indict a ham sandwich.
The drafters of our Fifth Amendment, which guarantees a defendant the right to grand jury consideration of his or her case before he or she can be brought to trial in a federal court, would be turning over in their graves if they knew how this shield against over-zealous prosecutors has been turned into a sword for the use of prosecutors against criminal defendants. I don’t know a single criminal defense lawyer who wouldn’t vote to abolish grand juries if they had that option.
The decision to impanel a second grand jury may have little to do, therefore, with the work of the grand jury, which could have just as easily been conducted a few miles away in a northern Virginia courtroom. It may, however, have everything to do with the petit jury that may eventually be selected to try any defendant who is ultimately indicted.
Defendants are brought to trial in the venue where they are indicted. Had the Virginia grand jury remained the only grand jury investigating the Russian connection, then any cases indicted by that grand jury would have been tried in Virginia. But now that a second grand jury has been impanelled in D.C., any defendant indicated by that grand jury would be tried in front of a D.C. petit jury comprised of citizens of the District.
Does this change of venue provide any tactical litigation advantage to the special counsel? Any honest lawyer, with experience as a prosecutor or defense attorney, would say yes. Why? Because this District of Columbia jury pool is different than the Virginia jury pool.
The District of Columbia jury pool will be overwhelmingly Democratic, by a ratio of close to 10 to 1. The Virginia pool is likely to be more diverse in its political affiliations, though probably still more Democratic than Republican. There is no guarantee, of course, that a Democratic juror would vote to convict an indicated member of the Trump administration, or that a Republican juror would vote to acquit. But in selecting jurors from among the pool, most prosecutors would favor Democrats and most defense attorneys would favor Republicans, all other things being equal. For that reason, most prosecutors would prefer to have such a trial in D.C. than in Virginia.
Then there is the third rail issue of race, which prosecutors and defense attorneys do not like to talk about but which plays a significant role in jury selection, as the Supreme Court has recognized. A predominantly white jury can be a different institution than a predominantly black jury. Again, there is no one-to-one association; predominantly black juries convict black defendants and acquit white defendants all the time, and predominantly white juries acquit black defendants and convict white defendants as well. But to say that race doesn’t matter at all blinks reality — or at least that’s what most experienced prosecutors and defense attorneys will tell you, when speaking off the record.
Prosecutors, who have wide discretion in choosing where a case will be tried, often consider the racial composition of the jury pool, along with other factors, in deciding the venue of a trial. That is simply a fact of life that few will dispute.
But when I made this factual point following Mueller’s decision to impanel the District of Columbia grand jury, Congresswoman Maxine WatersMaxine Moore WatersThe Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Best shot at narrowing racial homeownership gap at risk, progressives say Hillicon Valley — Presented by LookingGlass — Congress looks to strengthen government's aging cyber infrastructure MORE (D-Calif.) called me a racist. This is what she said:
What he [Dershowitz] is saying is "all of those black people are there and they don't like Trump and so he's not going to get a fair trial and so they should take it out of that jurisdiction. It shouldn't be there to begin with." I don't like that, and I'm surprised that Alan Dershowitz is talking like that. We will not stand for it. We will push back against that because that is absolutely racist.
I responded as follows:
If I had said that race didn’t matter, she’d have called me a racist. She throws around the term so loosely and so inappropriately, and it weakens her credibility just by calling everybody a racist by calling me a racist, when she calls real racists racists, nobody is going to believe her. ... Race matters and Maxine Waters ought to know that. ... Being black doesn't give you a license to call people racist any more than being Jewish gives you a license to call people anti-Semitic. So she ought to understand that every criminal defense lawyer knows that race matters, ethnicity matters, political affiliation matters...she targeted me for no good reason, she ought to be ashamed of herself.
The man who taught me the most about the role of race in jury selection was my friend and colleague Johnnie Cochran, who would clearly have agreed with my point. Would Waters call Cochran a racist? I doubt it. When Cochran died in 2005, Maxine Waters introduced a bill in the House of Representatives proposing that Congress “honor Johnnie Cochran, Jr., for his service to the nation, his pioneering work as a lawyer, author, TV commentator, and philanthropist, and his personal integrity and professional excellence.”
Alan M. Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law.” His new book, “Trumped up! How Criminalizing Politics is Dangerous to Democracy,” will be published in August. Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook: @AlanMDershowitz
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