Q&A with Guy Paradee - Part 2 & the Grand Jury Question

Part 2 of the Q&A with Guy Paradee is up on iTunes and you can listen to it here. Thanks again to Guy for taking the time to answer our questions and thanks to Sara for coordinating the meeting. The topics include aspects of investigative procedure (i.e. search warrants, grand juries), the timeline, Guy's thoughts on how law enforcement handled this case, and advice on how websleuths can best contribute to the case.

There is one topic in particular that I’ve received a fair amount of feedback/questions about, and that is whether or not a grand jury was convened to indict a suspect in this case. In the first part of the Q&A, Guy expressed doubt that a grand jury was ever convened. In the second part, he reiterated that sentiment. After doing some research and speaking to an attorney that is knowledgeable about criminal procedure (and New Hampshire in particular), I tend to believe Guy is probably correct, and that there was no grand jury convened in this case.

A grand jury is a 23 person panel that hears evidence from a prosecutor seeking to bring criminal charges against an individual. If at least 12 members of the grand jury believe there is enough evidence to charge an individual, then that person is indicted, and the criminal prosecution moves forward.

In theory, the grand jury acts as a “check” on the state against unwarranted or excessive charging. In practice, they more or less serve as a rubber stamp for the prosecution. In other words, with some exception (for instance, when the individual in question is a law enforcement official), the prosecutor seeking an indictment from a grand jury is nearly always successful – hence the phrase “you can indict a ham sandwich.”

There is little (if any) data available about the percentage of grand juries that move to indict within specific jurisdictions. However at the federal level for example, there were 162,350 cases prosecuted between 2009 – 2010. Yet in that same time period, there were only 11 instances in which prosecutors were unable to get an indictment from a grand jury. In other words, 99.99% of the time, the grand juries moved to indict. According to Andrew Liepold, a professor at the University of IL, “if the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong.” (Once again, the notable exception to that rule is when the target of the grand jury is a law enforcement official, and specifically, when the alleged crime involves on-duty police shootings.)

Based on the affidavits of Todd Landry, Nancy Smith, and Jeff Strelzin, which contain statements such as “there are grand jury subpoenas that are not public…,” it had been my belief that a grand jury had been convened in this case. However, I believe that was a mistaken interpretation on my part. The attorney I spoke with explained that simply because grand jury subpoenas are issued, that does not mean they were utilized in a grand jury. It could simply mean that they were issued in preparation for a grand jury. Moreover, certain words and phrases (for example, “pre-indictment stage”), suggest that there had not yet been a grand jury.

Finally, one critical element of grand jury procedure is that it is secret. The secrecy of the process is something that law enforcement and the judicial system take very seriously. So the truth is, we can not know whether or not a grand jury was ever convened. But from a basic statistical standpoint, if one had been convened, then it’s almost certain that a suspect would have been charged, and clearly that is not the case. In short, if I were a betting person, then I would argue that for all the reasons above, it is highly, highly unlikely a grand jury was ever convened to indict a suspect in Maura’s case.