Milton Brener on the New Orleans Grand Jury
Milton Brener was appointed Assistant District Attorney by DA Jim Garrison in the early 1960s. The following is excerpted from Brener's The Garrison Case: A Study in the Abuse of Power.
By virtue of his office, the District Attorney is potentially the most powerful of the public officials domiciled at Tulane and Broad. That he is potentially the most powerful in the city can be respectably argued. However, until 1962 the full extent of his strength had been convincingly impressed neither upon the community in general nor upon the politicians themselves. It lay largely unused in the statute books. Not until the advent of Jim Garrison was the realization driven home of the large extent to which the DA's power had remained untapped -- whether through responsible restraint on the part of former district attorneys, timidity, a lack of political ambition, or a combination of all three.
The District Attorney in Louisiana can charge any individual with any crime other than a capital offense by the mere signing of his name to a bill of information. By a stroke of the District Attorney's pen, headlines are made. Individuals are publicly embarrassed and compelled to undergo the financial expense of bail and legal representation and the emotional drain of public trial. This last cannot be fully comprehended, save by those who have experienced it. Likewise, by the signing of his name, the District Attorney can dismiss any charge, including capital charges; he need not seek the permission of the court.
Then there is the Grand Jury, which is, in truth, the District Attorney's toy. It is, in modern America, an anachronism, a relic from the legal Stone Age. It once served a legitimate function; however, like the human appendix or the little toe, it has outlived its usefulness and remains only an irritant to the modern administration of criminal law.
Grand Juries in Orleans Parish are selected for six-month terms by one of the eight judges in the Criminal Court, who then makes any necessary judicial determination in the course of that Jury's term. The duty of Grand Jury selection and judicial supervision is rotated among the judges. Selection of the twelve men who make up the jury is made by the judge from a panel of sixty or so citizens chosen at random from the Jury lists. They hear all capital cases, as such charges can only be tried upon a Grand Jury indictment. In addition, they may hear any other cases and likewise return an indictment if they feel the evidence so warrants. Proceedings are secret. Only the jurors and the District Attorney or his assistants, without limit as to number, are present to hear the witness. The judge is not. Some district attorneys, and many of their assistants, believe the requirement of secrecy of the Grand Jury proceedings to have been handed down with the Commandments at Mount Sinai.
It is understandable that secrecy of the proceedings is so zealously guarded for, often, they are a travesty. Among the members of a typical Grand Jury none will have any special training or experience and most will have no special ability to qualify for the exercise of investigative authority. Yet within the confines of the Grand Jury room, they reign supreme.
The sudden acquisition of authority and power over men apparently has an exhilarating effect. They need not be awed or bewildered by the new responsibility, however. Their legal advisor is the District Attorney. A strong camaraderie quickly develops. And it is not all work. Dinners and drinks are at State expense, and the expense itself has been the subject of news articles by more than one inquiring reporter.
Except in rare instances, the Jury will hear only those witnesses the District Attorney wishes them to hear. They are preconditioned by what the District Attorney has told them of the matter under investigation. There is no judge to strike any of his remarks as prejudicial. No representative of the defendant or prospective defendant is present; none of his witnesses will be heard, except as the Jury might wish to hear them. In this, as in all other matters, most Grand Jurors will be guided by the advice of the District Attorney.
Hearsay and opinion evidence are the rule, not the exception. There is no one to object. Witnesses deemed hostile or untruthful by the District Attorney, arbitrarily or otherwise, may be pointed out in advance. Most judges will permit only one counsel for a side to cross-examine a witness in the course of a trial. In the Grand Jury room, a witness may be badgered by all twelve jurors, plus the District Attorney and as many of his assistants as happen to be present. The questions will be in no particular order. Everyone will speak at once. There will be argumentative questions, abusive questions, questions such as would never be permitted in open court. The jurors are not deliberately chosen for their incivility; they are generally respectable citizens. But the metamorphosis that transpires when twelve such persons are given unbridled authority in secret proceedings merits scrutiny by serious students of human nature.
The prospective defendant himself is normally not heard unless he requests it. Most lawyers would stand aghast at any suggestion that a client suspected of crime should voluntarily appear before the Grand Jury. Testimony of a prospective defendant who has not been warned of his right to refuse to answer incriminating questions and to sign a waiver of his rights may result in a dismissal of an indictment brought against him.
Prior to 1962, most District Attorneys used the Grand Jury primarily as a buffer between themselves and adverse criticism in unpopular matters. Charges against an important public official or citizen, or on a controversial matter that the District Attorney wanted tried, were usually submitted to the Grand Jury. If indictment followed, no one could criticize the District Attorney. If the public clamored for the filing of criminal charges that the District Attorney felt were not warranted, or were politically unpalatable, the case was submitted to the Grand Jury. If a no true bill was returned, the District Attorney's skirts were clean. Few realized and none dared say publicly that the Grand Jury was, in practice, the puppet of the District Attorney. There were such phenomena as "runaway" Grand Juries, but these were rare and generally more disruptive to the legitimate administration of criminal law than the obedient ones.
Hence, if the Grand Jury was of benefit to the District Attorney, it was in a negative sense. The District Attorney is on the firing line; and most wage a constant battle against adverse publicity. Most DA elections are more savagely fought than those for any other Parish office, including that of the Mayor's, as, among other reasons, the ammunition is more plentiful. Thousands of cases are processed each year and honest errors and mistakes of judgment are inevitable. They make excellent fodder for the news-hungry press, as well as for political opponents. The smart District Attorneys have learned to live with the press as they would with an untamed carnivorous animal. It was constantly to be sated and pacified with newsworthy items of a harmless or innocuous nature, and as long as the animal lay sleeping, so much the better. They would not arouse it.
But Jim Garrison did not think defensively. No one had previously sought to use either the news media or the Grand Jury as offensive weapons. But all of that was to change.
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