Zimmerman’s Bill of Rights

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The New York Sun

No sooner did the special prosecutor at Florida file her charges accusing George Zimmerman of murdering Trayvon Martin than the controversy erupted over whether the bringing of charges is the result of a rush to judgment. Some will say that the idea of a rush to judgment is ridiculous. It was weeks after the killing before the charges were finally laid, and then only after a national outcry that went all the way to the White House. But the concerns rocketing around the internet are not only from racists indifferent to the fate of the slain youth. The concerns are also being voiced by some of the most distinguished legal minds in the country, including Harvard Law School’s Alan Dershowitz, who is a master of due process.

The question that has been nagging at these columns has to do with the decision of the prosecutor to bypass the grand jury. The so-called grand jury right, after all, is American bedrock, vouchsafed in the Fifth Amendment to the Constitution. It is stated in some of the plainest language in the whole Bill of Rights: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” So if a prosecutor wants to charge Mr. Zimmerman, why doesn’t the prosecutor have to go through a grand jury?

It turns out that the status of this part of the Fifth Amendment is still treated by the courts the way the whole Bill of Rights was intended to be by the American founders — as a curb on the federal government. It doesn’t apply to the states. The whole Bill of Rights was originally conceived of in that way. “Congress shall make no law respecting an establishment of religion . . .” is how the First Amendment begins. The italics are ours. It was a restriction on the Congress of the United States, which couldn’t establish a religion. The states, however, could, and some did, establish religions. The last disestablishment of state religion wasn’t until a generation after the First Amendment was ratified.

Things changed with the passage after the Civil War of the 14th Amendment, which came right after the Amendment abolishing slavery and was designed, at least in part, to enforce the end of slavery. The first part of the 14th Amendment says that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” It set the stage for a process called “incorporation” by which the courts began applying the Bill of Rights to the states. The courts have done so on a case-by-case — or a right-by-right — basis, and the process has taken time.

The right to keep and bear arms — the Second Amendment — wasn’t incorporated until two years ago. The case was brought by a man named Otis McDonald and several others against Chicago, which had tried to deny them the right to register a handgun. The question as it was put to the Supreme Court was “[w]hether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” The Supreme Court decided yes, advancing the application of the Bill of Rights yet another step more than two centuries after it was ratified.

Yet the Fifth Amendment right to a grand jury has not yet been incorporated. On the contrary, as far back as 1884, in a murder case known as Hurtado v. California, the Supreme Court ruled that the writers of the 14th Amendment did not intend to require states to enforce the grand jury right. So while some states honor this right to persons accused of a crime, others do not. Some offer the right to persons accused of some crimes but not other crimes. Florida is in this category. Had Mr. Zimmerman been brought up on capital charges, he’d have had the right to a grand jury. But because the degree of murder with which he is being charged is only the second and the maximum punishment only life in prison, he is not afforded the right to a grand jury. In Florida, it’s an option that, in the event, was laid aside, and the special prosecutor herself made the decision on whether to charge him.

No doubt there are those who will point out that in actual practice, the Fifth Amendment’s grand jury right hasn’t provided much protection against capricious prosecution. A grand jury operates in secret. The accused has no lawyer present. The accused doesn’t face his or her accuser before the grand jury. A chief judge of New York State’s highest court, Sol Wachtler, once said that grand juries were so pliable that a prosecutor could get a grand jury to “indict a ham sandwich.”* But the record also shows that grand juries sometimes get their backs up when a prosecutor seems too eager or the facts are ambiguous.

This happened at New York in the case of Bernard Goetz. He was carrying a gun on the IRT, when he concluded that four youths were trying to rob him and he shot them. The district attorney of New York County at the time, Robert Morgenthau, asked a grand jury to indict Goetz for attempted murder. The grand jury refused. When new evidence was adduced, a second grand jury was called. It did indict for attempted murder. A judge then dismissed the charge. An appeals court reinstated it. At trial, a petit jury — meaning the 12 men and women who actually try the facts of the case — determined that Goetz was, in fact, not guilty of attempted murder, vindicating the judgment of the original grand jury.

* * *

Is this why the special prosecutor in Florida chose not to give Mr. Zimmerman the grand jury right? This newspaper is not a psychic. Nor are we suggesting that there should not be an aggressive pursuit of the question of whether Mr. Zimmerman’s shooting of Trayvon Martin was murder. It may well be for the best that the case will be heard in a full adversarial proceeding in open court, for no matter how it turns out, the killing has already turned out to be one of the most important criminal cases in American history. All the more reason, though, that this is precisely the kind of situation in which the right of the grand jury is at a premium. The way things are going it wouldn’t surprise us were the case of Florida v. George Zimmerman to illuminate the logic of incorporating the grand jury right to all persons held to answer for an infamous crime, even if they are being held not by the federal government but by one of the states.


* The sandwich to which Judge Wachtler was referring may have been pastrami.

The New York Sun

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