FORT WAYNE, Ind. (WANE) – When a crime happens, police and prosecutors investigate to find a suspect and then charge that person. Sometimes a grand jury can be part of that investigation, but that’s a tool that hasn’t been used by the Allen County Prosecutor’s Office in more than 15 years.
“I don’t think we’d have nearly the number of unsolved homicides that we have right now if we were using a grand jury system on a regular basis. It’s a superlative investigative tool,” former Chief Deputy Prosecutor for Allen County Michael Loomis, said. “I don’t understand the mentality of saying we’re not going to do grand juries in Allen County.”
Current Allen County Chief Deputy Prosecutor Michael McAlexander said a grand jury is not a magic bullet.
“To give an impression that the grand jury is some magic answer does a disservice to the community and creates false expectations that can’t be met,” McAlexander said.
What is a grand jury?
- In Indiana, a grand jury is comprised of six citizens and an alternate.
- Grand juries don’t meet in courtrooms. Instead, the proceedings are usually in undisclosed conference rooms. They are not open to the public.
- Grand jury proceedings are confidential. It is a misdemeanor to disclose what was discussed or who testified before a grand jury.
- Grand juries can subpoena documents and witnesses.
- The target (suspect) of a grand jury investigation has to be notified, and may tell his or her side of the story, but is not required to testify.
- A grand jury does not decide guilt or innocence. It decides whether or not there is probable cause to charge someone with a crime. That is called issuing an indictment. If they do not think there is probable cause to charge someone, the grand jury would issue a ‘no bill.’
- Only the prosecution presents to a grand jury, but the prosecution may include information that would be considered in defense of the target.
- If someone is indicted by a grand jury, he or she still has the same due process in court as if the prosecutor used a probable cause affidavit to file charges without a grand jury indictment.
“It’s a vital tool,” Marion County Deputy Prosecutor Tim DeLaney said. “It’s a selectively used tool, but one that gives us a lot of options and allows us to proceed very carefully and thoughtfully on those cases that really require it.”
When would a prosecutor decide to use a grand jury?
Tim DeLaney: “Typically it’s things that are sensitive: political corruption, white collar crime, things that require a little extra diligence and you want to keep as confidential as possible. Other times you’ll have cases where witnesses are reluctant to come forward and the grand jury affords them the opportunity to give testimony in private to citizens of the community. Other times, there are cases where we want the community perspective. Like self-defense cases where it’s a call we want the community to get involved in.”
Marion County has a standing grand jury that can hear cases at any time.
Jack Sandlin is a retired Indianapolis Police Department detective and was assigned to the Marion County Prosecutor’s Office Grand Jury Division for 12 years.
Jack Sandlin: “A lot of cases that end up before a grand jury are the higher priority cases: homicides, gang cases, drug conspiracies. People are often reluctant to talk about those things to a detective on the street, and so by bringing them in, it gives you a different avenue to get information.”
Michael McAlexander: “When there is a sense you want to know where the community is on a case. Sometimes the law isn’t quite as clear as to what’s a crime and what isn’t. Did this violate the community standard? We used this extensively in the 80s in a lot of investigations against dirty book stores and pornography and that kind of stuff.”
Would Allen County’s solve-rate for homicides be lower if grand juries were used in some investigations?
Michael Loomis: “Absolutely. I don’t think we’d have nearly the number of unsolved homicides that we have right now if we were using a grand jury system on a regular basis. I can tell you from my own experience that grand juries have been very, very successful in conducting investigations even if they haven’t led to indictments.”
Loomis used grand juries to investigate and prosecute many cases, including homicide, child battery, corruption and promoting prostitution cases, when he worked in the Allen County Prosecutor’s Office in the late 1990s.
Michael McAlexander: “I don’t believe that’s true. It still requires good police work to bring something for evidence for a grand jury to look at. If you have no evidence to support that, you can parade all sorts of people through. If you don’t have any leverage on [a witness] to get their cooperation, they aren’t going to just say, ‘Oh. I got a subpoena. I guess I’ll tell the truth today.’ It doesn’t work that way. I think that’s rather naive.”
2016 saw a record number of homicides in Fort Wayne. According to Fort Wayne Police Department records, of the homicides in 2015 and 2016, and so far this year, 34 percent have been cleared or have an arrest made, warrants are requested in 17 percent and 49 percent are listed as open cases.
Argument: A grand jury can compel reluctant witnesses to testify.
Michael Loomis: “You have the ability to compel witnesses to testify and that’s important when the excuse for not doing investigations is that everyone seemed to ‘be in the bathroom at the same time.’ You can issue a subpoena to compel those people to come forward and testify and their failure to cooperate, potentially, could be contempt of court. There is a charge called obstruction of justice. There is a charge called perjury. There are other ways to help witnesses understand the importance of providing testimony.”
Michael McAlexander: “The idea that we can compel someone to testify by empaneling a grand jury is completely untrue. We can subpoena their appearance, but they still have their Fifth Amendment right under the U.S. Constitution not to testify. If they say, ‘I wasn’t there. I didn’t see anything. I didn’t hear anything,’ unless you have compelling evidence that they’re lying to you, you haven’t gotten any further. If they take the Fifth or say they don’t want to talk, we do have a tool, it’s called the grant of immunity, and we can grant them immunity and anything they say won’t be held against them. The problem with that is then you’ve given them license to say whatever they want and that can actually be harmful to a case. This idea that a grand jury can compel someone to testify is just not accurate. They can bring someone in. If the person doesn’t want to cooperate, we can offer them immunity and if they continue to not cooperate, we can do a contempt on them, but it still doesn’t ultimately compel them to testify.”
Jack Sandlin: “I’ve had cases where I’ve gone out and knocked on the door and that guy doesn’t want to talk to me, but we know from the investigation that he’s an essential witness and a grand jury subpoena can be issued and he can come before the grand jury and testify, or not testify if that’s the case, but we can go before a judge and compel the testimony if that’s the case.”
Tim DeLaney: “When a grand jury is involved, they are subject to a subpoena and they can be held in contempt of court for failure to give testimony. That is a powerful incentive to get people to talk. It’s been my experience, and it’s not always the case, but people are more willing to talk when it’s through a formal process than when you’re asking them to informally cooperate.”
Argument: The grand jury process is advantageous because it’s confidential.
Michael Loomis: “The targets don’t know anything about who was brought in to testify. They’re not there at the same time. There’s no disclosure of who was brought in to testify and who didn’t. The core principal of conducting grand jury investigations is that it is confidential. There could even be members of victims’ families who wouldn’t want to offer information to police about homicides, but with a grand jury, not only are you compelling them to testify, you’re giving them an excuse to testify.”
Michael McAlexander: “Part of that may be true, part of that may not be true. If you’ve targeted an individual that you think is the suspect, he knows there’s a grand jury proceeding and he or she knows who knows stuff. We have not had this issue here, but I’ve heard stories where gang members hang outside grand jury proceedings watching who’s going in and out. Chicago runs a standing grand jury. The Federal system runs a standing grand jury. You still don’t get totally away from witness intimidation.”
Argument: The grand jury can be used for gathering information in an investigation and not just for getting an indictment.
Tim DeLaney: “Most typically in a homicide case, it would be used for eliciting testimony from reluctant witnesses. That’s a very common function of the grand jury. We don’t ask them to indict or not indict, we just ask them to sit here and hear the evidence. That is a typical function of the grand jury.”
Jack Sandlin: “If you have a case that’s marginal on the evidence, sometimes those cases will get better by having that person testify before the grand jury. They may come with information they didn’t disclose in a regular interview, so a prosecutor can use that as a tool to make better decisions in charging. You might have a case where you don’t have enough to indict someone, but you can develop leads and there is no statute of limitations on a murder case. You can continue to investigate it and if you need to come back to a grand jury, you can always do that.”
Michael McAlexander: “Can it be an investigative tool? Sure. But, is that a substitute for a police detective to develop sources and informants that they can talk to and find out information? The grand jury on its best day might give us some leads to some other things, but for the most part the amount of time and man effort you’d be putting into the grand jury needs to be put into other intelligence.”
Michael Loomis: “I can tell you from my own experience that grand juries have been very, very successful in conducting investigations even if they haven’t led to indictments. You can still end up getting very important information and it may not even be on the case you’re investigating. There’s a level of intelligence you get from grand jury investigations. You’re likely going to get information you didn’t have before because of bringing witnesses in.”
Argument against grand juries: It’s one-sided in the prosecution’s favor.
Michael McAlexander: “It’s a prosecutor show. Try as you will, it’s hard to not show where you want to push the grand jury to go and that’s why there’s the saying, ‘A grand jury will indict a ham sandwich.’ An indictment is not the solution. It’s when you present a case and you get either a guilty plea or a jury coming back with a guilty verdict. That’s what’s meaningful to the system. Charging someone on flimsy evidence that you run through a grand jury and don’t show them all aspects of the case and you walk out of court with a ‘not guilty’ doesn’t serve the victims and it doesn’t serve the community. The danger becomes you don’t put everything in, and our experience has been it’s better to use people who are experienced trial lawyers [to decide whether or not to charge someone].”
Michael Loomis: “You don’t have to present both sides, but it was my practice to present as much evidence as I could for both sides because then, if I got an indictment, I knew I was on solid ground. It’s not like a grand jury will willy-nilly issue an indictment. There are certain standards that have to be satisfied and certain procedures that have to be followed. My experience with people who come to work as a grand juror is that they are vitally interested in the investigation. They don’t want to make any mistakes. They don’t want to indict somebody who’s innocent. They want to give the benefit of the doubt to anyone who has to appear before a grand jury, both from the target and the standpoint of the material witness.”
Argument: Using grand juries to make arrests in more homicide cases will have a deterrent value that will prevent some future crime.
Michael Loomis: “Someone who has been involved in that kind of crime, [a homicide], is more likely to be involved again then the average citizen, so we have got to get them off the streets. A community’s crime rate rises or falls on the basis of deterrent value. If the bad guys believe that they are more likely than not to be apprehended and subject to prosecution, they’re going to think twice about committing a crime. That’s another great use of the grand jury. Even if you don’t get an indictment, you’re sending a powerful message to the community that local law enforcement is going to pursue the investigation and that contributes to deterrent value and despite the efforts of our fine law enforcement, we have a lack of deterrent value.”
Michael McAlexander: “There’s probably deterrent value between the time he’s arrested and the time he goes to trial. But that deterrent value goes out the window when a jury comes back and says, ‘not guilty’ because then the people don’t trust the police and prosecutors to have valid evidence. That would be worse for the community to create that mindset that, ‘They can’t prove this against me.’ We had a case in the late 1990s where a guy was accused of killing two people and attempting to kill a third. They got a grand jury indictment and it went ‘not guilty’ very quickly and it was because there wasn’t sufficient evidence going forward.”
Would the Allen County Prosecutor’s Office ever use a grand jury?
Michael McAlexander: “There’s one case right now that I can’t talk about because it’s an open case, but that is one case we’re giving serious consideration to doing a grand jury on. But, that is the exception and the rarity. I’m hard pressed to think of any of the other homicides in the last 15 years that I think would have been solved by a grand jury or enhanced at all by a grand jury.”
Michael Loomis: “All those issues can be addressed and overcome. I don’t think there’s any excuse for not using grand juries as an investigative tool, particularly given our homicide situation.”
What’s your message to the community about what would help police and prosecutors solve more homicide cases?
Michael McAlexander: “Help us. If you have information or know of someone who you believe has information, please communicate that to the police department. Let the police do their job. Let them go out and talk to people and let them see what they can develop and if we get that sense of community back and cooperation where people understand that maybe you don’t know that person or family but it could be your family the next time. There’s no magic answer for any of this until we change some of the attitudes of the public and cooperating with police and have them realize it’s for their own safety and betterment of the community to cooperate with law enforcement.”
Karen Richards took office as Allen County Prosecutor in January 2003. Loomis ran against her in 2002 and again in 2014, both times advocating for grand jury use as part of his platform. Loomis said he is not running for prosecutor again in 2018, adding his motivations in contacting 15 Finds Out are not political.