A recent Journal article about the role of social media in publicizing crime raised the specter of vigilante justice, a topic with deep roots in New Mexico. An expert quoted in the article says, “The underlying issue here is also a distrust of the state’s ability to efficiently enact crime control and perform criminal justice.”
As distrust in the state’s ability to “perform criminal justice” grows, we’ve been treated to the unusual public theater of Bernalillo County judges trying to reduce the district attorney’s reliance on grand juries. The dispute gives citizens a rare opportunity to see behind the scenes of our legal system, offering insights into civil cases, too.
But first some background. Any person charged with a crime is entitled to a prompt determination whether the evidence gathered by police establishes probable cause to believe the person committed the crime. In the absence of probable cause, charges must be dropped. Probable cause is far from proof of guilt but means enough evidence to make it reasonable to require the person to answer the accusation.
Probable cause must be determined at the very outset of a prosecution. But who determines it? In the federal system, that authority is exercised by grand juries composed of ordinary citizens. Grand juries are democratic, which is why our Founding Fathers loved them. They avoid the problem of concentrating power in the hands of corruptible individuals. Since the grand jury evaluates only the prosecution’s evidence, not the defendant’s guilt or innocence, its proceedings are one-sided. Defense counsel plays no role. The grand jury, not the prosecutor, levels the accusation known as an indictment.
But in many state courts, charging decisions are monopolized by the legal profession. In those states, no body of citizens sits between prosecutor and the accused. A judge, sitting alone, determines whether charges filed by a prosecutor are supported by probable cause. The proceeding at which the judge makes that determination is called a preliminary examination, and it works like a minitrial, with defense counsel given an opportunity to examine witnesses in open court.
There are advantages and disadvantages to both systems. But the greatest practical difference is time. Grand jury proceedings can conclude in 10 minutes, but preliminary examinations sometimes stretch over days. In states where the criminal justice system is adequately funded, that distinction probably isn’t very important. But we live in New Mexico.
Our state Constitution allows prosecutors to choose which method to use. The Constitution also gives district judges the authority to convene grand juries “at such times as to him shall be deemed necessary,” a provision as ambiguous as it is sexist. Necessary for whom, evaluated under what standard? And why the passive voice? That garbled provision gives judges the power of the purse over grand juries.
As the Journal reported in May, Bernalillo County District Court “has been gradually reducing the number of grand jury hours available per week, meaning prosecutors must launch an increasing number of cases using preliminary (examinations).”
The pageantry of our trials encourages citizens to think in terms of winners and losers, as though trials were contests between two sports teams. But every case also involves a judge, and most involve lawyers. If you want to understand how the legal system works in America, pay attention to the way in which all the participants, and not just the named parties, use it in ways that also advance their personal and professional interests.
The reduction in grand jury hours increases the power of judges over the administration of criminal justice in Albuquerque. Decisions previously made by ordinary citizens and the DA are now made by judges instead. “It will not be denied,” James Madison wrote in his famous essay on the separation of powers, “that power is of an encroaching nature.”
The opportunity for defense attorneys to influence prosecutions at their initiation gives them a little extra juice, too. And who can doubt that a lawyer in private practice who handles a preliminary examination deserves a fatter fee than one who doesn’t? When I look at this dispute from the point of view of the defense bar, I’m enthusiastically in favor of the change.
Of course, a person can pursue personal and public interests at the same time. We should be grateful when selfishness and civic-mindedness line up. That’s how great things get done. But in evaluating any legal dispute, in any matter, criminal or civil, it’s important to consider noble sentiments in their native context. The struggle for power and self-interest usually occurs behind the scenes, hidden behind a curtain of fine rhetoric, but occasionally, just occasionally, the brawlers tumble out to the front of the stage.
Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org