I like to read, research, study and even, I suppose, obsess over the law. I enjoy the intricacies of the penal code, municipal law and civil rights law. Yes, Im VERY exciting like that. Before CourtTV changed its name and programming in 2008, they would broadcast trials from around the nation along with legal analysis from attorneys. I would often record and watch the hearings after work. What I eventually came to understand about my fierce interest was my fascination with the legalities of our society were the twists, turns, loopholes, interpretations and the spirit of intent of each law. To fully understand a statute, often you would need to go back to look at the discussion surrounding the writing and passage of the ordinance and also what law this would enhance or replace. I have met and befriended many attorneys over the years that would patiently make allowances for my strange obsession for their careers. When I would read news coverage about a strange legal case with some seemingly bizarre outcome or a surprising strategic move during a trial, these lawyers would take a moment to explain the hows and whys of the legal moves. I wasnt interested as much in the celebrity drama or the motivation of the criminals in a case but more of the motion filing of an attorney or the instruction or ruling of a judge. Something as subtle as the sentence structure of asking about a fact rather than stating a believed fact and asking a witness to confirm would make all the difference in the trials outcome. Subtle things like how, when and why a police detective asked a question and a suspect answered versus not answering a question made a world of difference in the charges brought, the verdict in court and the severity of a sentence. One of the attorneys who was most patient and forthcoming was Richard Schwartz. Rick and I were sort of thrust together by circumstance when I was elected to Newton Falls City Council and he was the municipal law director, in addition to his private practice. We were close in age, respected each others thought process and understood that asking for explanation and disagreeing on a political or legislative clause or provision did not mean a debate would turn personal or hostile, but rather if a discussion ensued and arguments were encouraged not only would each of us be able to teach the other but also the better result would benefit the constituency. It was this position and era that I learned not every disagreement is a personal attack. That lesson above all others has served me well in the years to follow. During one of our earlier conversations where he was inquiring as to my deep curiosity of the law, he asked why I had not gone to law school. I told him I had not realized or developed the interest until later in life, long after traditional college aged years and after the birth of my children. He reminded me that I could return to college as a part time, non-traditional student and graduate in about ten years. I emphatically replied, Rick, Im almost forty years old. Do you know how old I will be if I graduate law school in ten years? He smiled and calmly replied, Eric, how old will you be in ten years if you DONT go to law school? In a nut shell, thats what I appreciated about rick and our relationship. I share that story and others involving interactions with Rick and all of them end with smiles or outright laughter. There was a moment when our city council was being asked to consider a motion that was controversial and whatever decision we made was likely to be litigated in civil court. The a United States Supreme Court had ruled on something similar already and Rick felt council as a body should know and understand the ramifications of our decision prior to its consideration. We convened into executive session. In Ohio, government boards like city councils are controlled and regulated by a strict code of rules and ethics specifically codified in the ohio revised code and a municipalitys charter. Executive session is a very simple term describing a portion of the session session of a legislative body which is closed to the public. Executive Sessions are perfectly acceptable for government boards as long as they meet a narrow set of criteria like the only area of discussion allowed is specific personnel issues, the purchase or sale of property, collective bargaining, court litigation, and other matters required to be kept confidential by law. There can be no decision making, no voting, and no discussion of matters not allowable by law. On this specific occasion, an executive session was requested. When we convened in the closed door meeting there were five members of council, the mayor, city manager, law director and city clerk sitting around the large conference table. Rick began with a very brief introduction and explanation of the litigation heard at the Supreme Court and how it may impact our community. He had only three copies of the twenty five page Supreme Court decision and he passed one copy of it to his right a second copy to his left where I was sitting and he kept the third copy in front of him. I asked if I was supposed to continue passing this or if there were additional copies. He leaned slightly in my direction a whispered, No, that is your copy. He smiled before answering my next question. Why do they all share one copy and I get my own? With his smile now morphed to a full blow grin he replied, Because you are the only person here who will read it. And then he sheepishly added, And you will call me every day this week to discuss it. I miss Rick. He passed away in the summer of 2011, tragically succumbing to cancer. He was only fifty four and had lived more of life than most people could do in one thousand years. He practiced law for thirty years and in addition held certifications as a PGA golf pro, a yoga instructor, he was an artist, an avid writer, had many business interests and traveled the world. We rarely have the opportunity to meet such a fascinating and widely interesting person, let alone develop both a professional and personal relationship with them. I was so fortunate for the decade I had Rick as a part of my life. I will always recall with great fondness the many hours we shared on the floor of city council and even more hours on the phone or together outside of that arena discussing life and debating legal interpretation. Ricks death has left many voids in this world. The smallest is being available to answer my questions and Ive got a couple of good ones that surround recent grand jury actions in New York City and St. Louis County, Missouri. I am NOT seeking to discuss or debate whether what they did was right or wrong. Im not trying to argue the politics of race, militarization of municipal law enforcement or gun laws. My question is merely procedural. Id make it hypothetical but its about real cases so lets use these two real life cases that have been and continue to be all over the news. I am not passing judgement. I have opinions on these cases but thats not what this is about. Its not about guilt or innocence. Its about procedural rule of law. I am asking because I truly do not understand the process and maybe its different in Missouri and New York than it is here in Ohio. If you have what you consider to be very reliable evidence of a crime, a three minute video of a police two men fighting and one of the men dies, according to the medical examiner, as a direct result of the other mans actions, how on that fact alone is the accused not indicted? I remember reading about Hon. Sol Wachtler, the former chief judge of the State of New York Court of Appeals, who coined a funny phrase in a 1985 interview with the New York Daily News. He said that prosecutors should be more accountable for their actions. He proposed scrapping the grand jury system that he claims operate more often as the prosecutors pawn than the citizens shield. Wachtler said district attorneys now have so much influence on grand juries that they could get them to indict a ham sandwich. About a month later a New York Times story quoted him saying that he firmly believed most prosecutors could get a grand jury to do whatever they wanted them to do. So, a grand jury would indict a ham sandwich but in St. Louis County, Mo, and Richmond County, NY, Im guessing that sandwich could not be indicted if it were made with white bread. Based on what I saw a week ago in Ferguson and this week in NYC you couldnt indict a ham sandwich if it was on white. White, it seems, doesnt get indicted. White NYPD officer Daniel Pantaleo was not indicted in the death of black victim Eric Garner. The autopsy states compressions to the chest and prone positioning during physical restraint by police. The medical examiner ruled the death a homicide. In Missouri white Ferguson police officer Darren Wilson stood before a grand jury who found there was not enough evidence to indict him in the shooting death of unarmed black nineteen year old Michael Brown. I thought I had an understanding of how the grand jury system worked until this last week or so. Now Im not so sure. Lets pretend that, God forbid, a law enforcement officer employed with one of the sixteen police departments in Trumbull County had been captured on video in exactly the same situation as the NYC police officer and the suspect died. Ad to that the ruling by the coroners office here saw a ruling by Dr. Germaniuk of homicide. Does the officer get charged by the County Prosecutors office or do you leave that decision solely up to the grand jury? Can the state or county just charge the officer with a crime or does it have to go through the grand jury? What would cause the prosecutor to not seek a grand jury indictment to charge the officer unilaterally? How do the jurors decide to hand down an indictment? Is the vote a simple majority or a two thirds majority or does it have to be unanimous like a trial jury? Can the jurors ask questions of the witness? I understand the New York grand jury heard from more than fifty witnesses including police officers who were given immunity in exchange for their testimony as well as bystanders and reams of documents. The grand jury determines who goes to trial only to screen out incompetent or malicious prosecutions and not to determine guilt or innocence. Grand juries are used only in about half of our fifty states. How could the New York case especially not garner an indictment? There was video that we have all seen, three other videos we have not seen that show the same attempt to apprehend the man who died, witnesses, coroners report, and physical evidence. How does this panel of grand jurors justify their choice to allow this officer to go free without so much as a trial? How does the prosecutor justify this same action?
Posted on: Sat, 06 Dec 2014 03:24:47 +0000
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