Thursday, September 05, 2002

Rules offer insights on grand jury


City lawyer as foreman not absolute conflict

By Dan Horn, dhorn@enquirer.com
The Cincinnati Enquirer

        City officials, community leaders and defense attorneys asked some tough questions Wednesday after learning that an assistant city solicitor served as foreman of the grand jury that indicted Lt. Col. Ronald Twitty.

        Because the grand jury process is secret, prosecutors were reluctant to say much about the case.

        But the rules governing grand jury investigations answer at least some of the questions now being asked about how the process works and how the Twitty case was handled:

        QUESTION: What is a grand jury's job?

        ANSWER: A grand jury must determine whether there is “probable cause” to support criminal charges. The jury does not hear all the evidence that would be presented at a trial and is not asked to determine guilt or innocence, only whether there is enough evidence to prosecute the case.

        Q: How is a grand jury chosen?

        A: Grand jurors are chosen from the same pool of candidates as regular jurors: They are randomly selected from voter registration rolls. The jurors are then randomly assigned to a grand jury or a regular jury. A grand jury typically consists of nine voting members and five alternates.

        Q: How do they decide whether to indict?

        A: They hear the evidence and vote. At least seven members must vote to indict, otherwise the charges are rejected and the grand jury returns what is known as a “no bill.”

        Q: Can prosecutors throw off jurors they don't like?

        A: No. Unlike a criminal trial, in which prosecutors and defense attorneys can reject a limited number of jurors, grand jurors cannot be dismissed without good cause.

        Q: How can grand jurors be dismissed?

        A: If they are related or directly connected to witnesses, suspects or the investigation, jurors can be rejected on grounds that they have a vested interest in the case and therefore could not be fair. The law also allows prosecutors to dismiss anyone who is “otherwise unsuitable for any other cause to serve as a juror.” Typically, this would include someone who expresses an unwillingness to follow the law or who has a clear conflict of interest.

        Q: Doesn't this assistant city solicitor, Stephen Fagel, have a conflict of interest in the Twitty case?

        A: Not necessarily. Although Col. Twitty's lawyer is expected to make that argument, it often is difficult to prove a juror had a direct conflict of interest that prevented him from being fair. A judge would have to make the call, and judges rarely throw out grand jury indictments.

        Q: But didn't city officials hand the investigation over to the sheriff's department because they feared a potential conflict?

        A: Yes, but the city did that voluntarily to avoid the “appearance” of impropriety, not because it had a legal obligation to do so. Mr. Fagel works in the real estate division of the solicitor's office and apparently was not directly involved in matters related to the Twitty case. Prosecutors say they did not see a clear conflict of interest that would allow them to legally dismiss him from the jury.

        Q: Could Mr. Fagel have voluntarily stepped aside?

        A: Yes. All jurors are asked if they can be fair to both sides. If he had said he could not be fair — or that he felt uncomfortable serving because of a potential conflict — he would have been dismissed.

        Q: Did prosecutors know Mr. Fagel was a city solicitor?

        A: Yes. All jurors are asked to provide basic information about their jobs, their marital status and their families.

        Q: How did Mr. Fagel become jury foreman, and what is the foreman's job?

        A: The jurors select a foreman by voting. The foreman is technically the leader of the jury, but he has no more voting power than any other juror.

       



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