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Michigan could lose secretive one-man grand jury. 3 counties will be impacted
most





MICHIGAN COULD LOSE SECRETIVE ONE-MAN GRAND JURY. 3 COUNTIES WILL BE IMPACTED
MOST

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Beth LeBlanc   | The Detroit News


Michigan's 83 counties and the attorney general are in danger of losing an
investigative and prosecutorial tool used almost exclusively in recent years in
three of the state's largest counties as the Michigan Supreme Court ponders the
constitutionality of the state's one-man grand jury system. 



The secretive one-man grand jury program has been used throughout the decades —
especially in Wayne, Genesee and Kent counties — for investigations and
indictments in cases involving violence or public corruption in which a witness
would have reason to fear retaliation. 

The system has come under the scrutiny of Michigan's highest court after several
state officials indicted by a one-judge grand juror in the Flint water
prosecution challenged the constitutionality of the process earlier this month.
They argued the law doesn't allow a judge to both investigate and charge an
individual and, if it did, such a process would violate the separation of powers
between the judicial and executive branches. 

In addition, the Flint defendants have argued the witnesses in their cases had
no need for secrecy since many had already testified publicly in the first round
of prosecutions that Attorney General Dana Nessel's office eventually
dismissed. 




More: Flint defendants prompt justices to question Michigan's use of one-man
grand jury

"... The judiciary here is seeking to bring charges against the highest-ranking
executive officials, including the former governor and a member of his cabinet,
the director of MDHHS, Director (Nick) Lyon," lawyers Chip Chamberlain and John
Bursch wrote on behalf of Lyon to the Michigan Supreme Court in a bid to upend
the one-judge grand jury system.  



"One can scarcely imagine a greater attack on the separation of powers than the
legislature delegating to the judicial branch the ability to initiate a
prosecution of the highest officials in the executive branch."

Nessel's office, when asked for comment Monday, did not respond prior to
deadline. But attorney general staff earlier this month defended the use of a
one-person grand jury for public corruption and violent crime investigations in
which a witness may fear retaliation. 

Most county prosecutors, even many who do not use the system, told The Detroit
News that they generally support the continued existence of the one-man grand
jury program. 



"Anytime you have a system like this, you’re going to have detractors," Cass
County Prosecutor Victor Fitz said. "And just because it doesn’t work well in
one instance doesn’t mean you put the baby out with the bathwater.”

But the line of questions by several justices during the May 4 Supreme Court
hearing in the Flint water defendants' challenge of the one-man grand jury
system is already prompting Genesee County officials to scale back their use of
the one-man grand jury and explore other methods in case the high court strikes
down the practice.

Michigan's secretive process allows a prosecutor to bring witnesses and evidence
privately to a judge, who sits as a single juror and eventually decides on
whether to indict an individual.

Potential defendants and their lawyers usually are excluded from the grand jury
process — eliminating their access to a traditional pretrial phase in which a
prosecutor is required to present the evidence supporting the charges in a
public preliminary examination before the case moves to circuit court for
trial. 




The process eliminates the prosecutor's task of deciding whether to bring
charges, abolishes the normal evidentiary hearings prior to trial and keeps
everything under absolute secrecy until the indictment is issued. 

The Detroit News reached out to prosecutors from Michigan's 83 counties to
determine the prevalence of the one-man grand jury system across the state.

Wayne, Genesee and Kent counties were the only ones of the 47 counties that
responded that have used the grand jury system during the past five years —
largely for violent, organized crime involving narcotics, homicide or gangs. 

Other counties, such as Oakland, Jackson and Ingham, have used the system
occasionally over the past decade on narcotics crackdowns. But dozens of other
county prosecutors don't currently use the system and others can't remember the
last time, if ever, it was used.



Some county prosecutors told The News they weren't aware the one-man grand jury
existed in Michigan. 

In recent years, similar procedures have been used in a few other states — such
as Wisconsin and Connecticut — but the system is largely an "outlier in American
law," said Tim Lynch, a Virginia attorney specializing in constitutional
criminal procedure.

"It really just runs contrary to the basic American principle of the separation
of powers," Lynch said. "... The one-man grand jury operates on the completely
opposite idea, that we’re going to combine powers into one person.”


WAYNE TARGETS NON-FATAL SHOOTINGS

Michigan's one-man grand jury was signed into law and first used in 1917 in
Detroit in a public corruption inquiry and dubbed by the press that year as the
"one-man grand jury," according to a 1957 publication by Robert Scigliano of the
Governmental Research Bureau at Michigan State University.




Scigliano described the first investigation as involving something of a
"political feud." But he said the case gave shape to the system that would be
used more than a century later, despite subsequent minor amendments to the law
over the years.

In Wayne County, the one-judge grand jury has been used perhaps more than in any
other part of the state to address violent crime and, in recent years, focused
specifically on non-fatal shootings. 

Wayne County Prosecutor Kym Worthy declined to provide data on her office's use
of the one-man grand jury because of her involvement in the Flint water
prosecutions. But Wayne County Chief Judge Timothy Kenny, through whom the
requests for grand juries flow, said the county's use of the program has
decreased over the past two years. 

The one-person grand jury was used in Wayne County twice in 2021 and 16 times in
2020, Kenny said. That's down from the 33 cases handled through the county's
one-judge grand jury in 2019 and 52 cases in 2018. 



"The idea behind using the one-person grand jury was to try to resolve non-fatal
shootings where the victim was either hostile or uncooperative with the police
and prosecutor's office who were trying to solve these crimes of violence,"
Kenny said. 

A Michigan State University study of the use of the one-judge grand jury for
non-fatal shootings in the Detroit area found that it resulted in more
prosecution closures, more findings of guilt, longer sentences and a "modest
reduction in shootings."

But the study also noted complications in the analysis: During the study period,
there was a corresponding shooting decrease in precincts not using the
one-person grand jury; there were other intervention measures at work; there
were protests related to the May 2020 killing of George Floyd; and COVID-19
resulted in the closure of courts, the suspension of the grand jury and changes
to staffing at the Detroit Police Department. 



The study — written by Indiana University Purdue University Indianapolis
professor Lauren Magee, MSU doctoral student Travis Carter and MSU professor
Edmund McGarrell — recommended further testing of the one-judge grand jury
procedure in the Detroit area to get definitive results.



"When assessing the statistical significance of the trends and the trends in
other parts of the city not affected by the one-person grand jury, we cannot say
with confidence that the one-person grand jury demonstrated the desired impact
on serious gun crime," according to the report.


GENESEE LEARNS FROM WAYNE

In Genesee County, the prosecutor's office has used the one-man grand jury in 38
cases since the Flint water indictments in January 2021. The 38 cases have
resulted in the indictment of 85 individuals.

Genesee County Prosecutor David Leyton has defended the use of the one-judge
grand jury as a tool to protect witnesses in violent crime cases who fear
retaliation. He said he heard about the process from Wayne County and an
assistant prosecutor from Wayne helped train Leyton's employees. 

Leyton acknowledged the same witnesses who testified secretly would eventually
need to do so in public at trial, but he noted many cases would result in
pre-trial plea agreements or become more secure when handed up to circuit
court. 



"At least it gets you past the charging stage and into the trial arena," Leyton
said. "... There is at least a perception that the trial courts might be securer
than the preliminary examination courts.”

He argued a one-judge grand jury wasn't that different than a preliminary
examination — in which both the defense and public are present  — or a citizens
grand jury — where the residents hearing the case have less knowledge of law and
might be less discerning than a judge when it comes to indicting an individual.



"It's been said a prosecutor can indict a ham sandwich in front of a citizens
grand jury," Leyton said.

Still, the Genesee County prosecutor said he's scaling back his use of the
one-judge grand jury system and exploring a strengthened witness protection
program instead. 



The one-man grand jury process, he said, puts a lot of work on the chief judge,
who not only has to assign the cases but also has to redact reams of transcripts
for distribution to the defense lawyers after the indictment. 

Additionally, Leyton is doubtful of the one-judge grand jury's staying power.

"I watched some of the Supreme Court hearing and my appellate chief watched it
all," he said. "It sounds like some of the justices are skeptical of its
constitutionality."


HIGH COURT WEIGHS TRANSPARENCY

The state Supreme Court has previously ruled on issues pertaining to a citizens
grand jury but May 4's oral arguments on the one-man grand jury were considered
the high court's first time considering the legality of that specific tools,
despite its decades of use.

Should the Michigan Supreme Court find the use of a one-man grand jury
unconstitutional, it would mark the second time charges in the Flint water
prosecution had been overturned. In June 2019, Nessel's office decided to drop
all criminal prosecutions started under predecessor Attorney General Bill
Schuette's office and reserve the right to refile charges to give the department
time “to conduct a full and complete investigation.”



More: Criminal charges dropped against Lyon, 7 others in Flint water scandal

Justices expressed some discomfort with the blending of prosecutorial and
judicial duties in a secret process, noting that defendants already perceive
that the deck is stacked against them when they enter the courtroom. 

"There is enough of a public confidence issue about courts and about the rule of
law," Chief Justice Bridget McCormack said. "… Is it helpful to us to put judges
in the position of issuing charges?"

St. Clair County Prosecutor Mike Wendling can't remember a time in the past 25
years that the one-man grand jury process was used there. He said he's concerned
about the process but not related to potential violations of separation of
powers. 

"My apprehension is based more in the secrecy of the process and the exclusion
of the defendant from the procedure," Wendling said. "A preliminary exam allows
the defendant to confront witnesses and the public to observe. I think that
transparency builds public confidence in the criminal justice system."



Wendling and others pointed out that when there is a concern about witness
protection, other measures such as a suppressed investigative subpoena, a
citizens grand jury or witness protection program could be alternatives. 

"Just because there are difficult circumstances, you can’t compromise
constitutional guarantees," said Lynch, the Virginia attorney.

But Nessel's office defended the use of the process as legal, constitutional and
common in certain parts of the state. Assistant Attorney General Chris Kessel
told the justices he had served as a defense lawyer in several cases brought
through a one-judge grand jury indictment and had no issue with its use. 

"I would rather have an impartial judge who is not vested in prosecuting cases
and didn’t necessarily hold duties to anybody else, other than to be honest to
the bench, to make those decisions," Kessel said. 



eleblanc@detroitnews.com

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