Hello, Street Law advocates!
In this second installment of our discussion of the Trump Indictment, we will cover the ramifications of a grand jury indictment, how these ramifications would play out differently for the average American when compared to how it has impacted Mr. Trump, and how those ramifications can lead to due process issues. In a post for the Marshal Project, Caroline Grueskin recounted her experience serving on a New York grand jury. Grueskin discusses how grand juries serve as both a sword and shield of the criminal justice system. Grand juries are a sword in the sense that an indictment is followed by an arraignment, which is when the defendant enters a plea in response to the indictment, is usually confined, and bail is usually set. They are also a shield because they allow the community to have a say in pursuing a criminal case. Grueskin recounts the trials and tribulations the jurors went through during the indictment process. She recalls when she first heard the reputation of grand juries which is that “they can indict a ham sandwich,” and how that statement made her feel disenfranchised with the criminal justice process. Grueskin then comes to the realization that most cases do not go to trial, which results in a majority of defendants being incarcerated on uncontested charges. This leads her to realize that grand juries are not a problem but are in most instances the only check on the power of prosecutors to charge a defendant and force a plea deal before trial.
After a defendant is indicted, they are met with the sword of the criminal justice system which is an arrest, if they haven’t been already, and an arraignment. An arraignment is the initial hearing of a criminal case where the defendant learns about their rights, the charges against them, and whether to hold the defendant in prison before trial or release them until the trial. In most cases, the defendant will likely be held in jail unless they can post bail which is granted after the judge weighs several factors such as the type and severity of the crime, how long the defendant has lived in the area, their local family, prior criminal records, and possible threats to witnesses. The judge weighs these factors to determine what amount of bail is appropriate for each defendant to successfully act as a deterrent to not returning to the Court’s custody and an incentive to get the bail money back from the Court system. The normal arraignment experience however was not the experience Trump had during his arraignment. There were no handcuffs, no mug shot, no holding cell, and no pre-trial confinement. For most defendants, they are placed in unsanitary conditions in overcrowded holding cells while awaiting arraignment, then sent to prison to await trial if they cannot afford to pay the bail. Some prior defendants report nothing to eat but moldy sandwiches and the crowded cell being littered with urine-filled plastic cups.
What is most concerning, is that these people have not been found guilty of a crime before their confinement, and many of them did not know about the indictment — meaning they could not provide a defense before their liberty is held hostage by the state. In determining whether to hold an individual before trial, the courts balance the defendant’s presumption of innocence with public safety. This, however, is a slippery slope that often ends up penalizing people who have not yet been convicted of a crime. In some instances, judges are able to weigh the prosecution’s evidence before trial to determine whether to confine a defendant or how high bail is to be set. The due process clause is supposed to protect defendants from unnecessary punishment, however, the common practice of holding people in subhuman conditions while they await trial falls far from the standard the due process clause mandates. Here, there is no standard that judges apply in determining who is detained awaiting trial and who is not, which leads to outcome inconsistencies that the Trump arraignment exemplifies.
Most New Yorkers Don’t Get the Trump Treatment at Arraignment, The Marshall Project, https://www.themarshallproject.org/2023/04/04/indictment-arraignment-meaning-new-york-trump (last visited May 23, 2023)
Caroline Grueskin, Confessions of a Grand Juror, The Marshall Project (Oct. 27, 2015), https://www.themarshallproject.org/2015/10/27/confessions-of-a-grand-juror
Office of the United States Attorneys, Initial Hearing / Arraignment, https://www.justice.gov/usao/justice-101/initial-hearing
Shima Baradaran, Restoring the Presumption of Innocence, 72 Ohio St. L. J 723, 766-76 (2011).
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