PERSPECTIVES ON THE SIMPSON CASE : A Sham Indictment Process : The grand jury was meant to be a buffer between people and state. The D.A. is using it to gain unfair advantage.

For the past week, a grand jury has been considering whether to issue an indictment agains O.J. Simpson, based on evidence from the Los Angeles County District Attorney’s Office.

Let’s consider what the jury is probably not being told by the D.A.

Grand juries originally had a special role in our criminal-justice system. In the Bill of Rights, they receive special mention in the Fifth Amendment, separate from the right to trial by a 12-person petit jury.

A grand jury was intended to guarantee that a panel of private citizens would stand between the power of the state--police, prosecutor and judge--and the individual in criminal prosecutions. Thus, under our federal system, no person can be charged with a felony without a grand jury first voting to indict the suspect based on a finding of probable cause.

In California, the state has an alternative procedure. The state can first charge a person without a grand jury. But then the state must hold a preliminary hearing within a very short period of time to determine probable cause. This is the procedure that was used to arrest and charge Simpson. His preliminary hearing is scheduled for Thursday.

The district attorney’s use of the grand jury in the Simpson case is a distortion of everything for which it was intended. In truth, the district attorney is using the grand jury as a tool of the prosecution, to obtain special advantages for the trial before a petit jury.

At this point the grand jury has no power to perform its essential function, to serve as a buffer between the individual and the state before charges are filed. The charges are already filed, and no matter what the grand jury does, the D.A. will still proceed with the prosecution.

Therefore the grand jury proceedings are meaningless. The grand jury is being exploited in a way unintended by our Constitution. The district attorney is conducting one-sided depositions without attorneys for the defense being present or participating or being able to take any depositions themselves.

Members of the grand jury should be true to their great and ancient tradition as an independent body. They should tell the district attorney that, since he has chosen to proceed without submitting first to the constitutional protections of a grand jury, that he should proceed with the preliminary hearing, which is the appropriate protection for such unilateral action.

What we are seeing here is a sham indictment process--the D.A. pretending that the grand jury’s decision will have some meaning, when the real purpose is to obtain hidden and unfair tactical advantages from a one-sided process that was never intended for that purpose.

The grand jury’s very existence is intended to give private citizens the power to rein in the state when it uses its laws and authority for improper or unintended purposes. The grand jury has the power to simply say “no” to the district attorney--and should do so.

By doing so, the grand jury would not be freeing Simpson or preventing the state from prosecuting him. It would simply be making the statement that the government must follow both the letter and spirit of our laws and our Constitution.