Mediaboss Marketing

By Michael Loucks

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

Law360 (May 29, 2020, 5:00 PM EDT) --

When the pandemic erupted in earnest in March and states began implementing stay-at-home orders or guidances, the federal courts, which supervise the federal grand juries, suspended (virtually) all nonemergency sessions. As the country begins to emerge from home confinement, the courts will begin to loosen restrictions on the sitting of grand juries. Will they fully recover and what does that mean?

The U.S. Supreme Court has called the grand jury a "kind of buffer or referee between the Government and the people" and asserted that an "independent and informed grand jury" is a "necessity to society." The Department of Justice Manual provides that the grand jury "is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal prosecutions."

The rules permit the prosecutor to seek an indictment based solely upon hearsay evidence, so long as the grand jury knows that the evidence is indeed hearsay to the witness presenting it. Criticism of the grand jury as a barrier to unfounded prosecutions has included the statement by New York Judge Sol Wachtler: "If a district attorney wanted, a grand jury would indict a ham sandwich."

The grand jury is an efficacious investigative tool. It acts in secret, which allows witnesses to recount events far from the glare of publicity and pressure that accompanies it. Individuals under investigation may not know who is testifying and accordingly may not bring improper pressure to bear.

Witnesses who refuse to provide evidence can be compelled to testify, and even immunized upon assertion of the Fifth Amendment to decline to answer questions. Subpoenas may be issued to collect documents from third parties, including those reluctant to help in the investigation of criminal conduct. And, as the DOJ itself recognizes, it can act as a protection for defendants from meritless charges.

Two things are clear: Only a grand jury can return an indictment, and only a grand jury that is given the opportunity to evaluate the government's core evidence can act as a bulwark against unfounded prosecutions.

While prosecutors can seek an indictment with only the presentation of hearsay evidence, following such a practice in all matters and for all evidence not only eviscerates the efficacy of the grand jury as an investigative tool (it is hearing only evidence already collected), such a practice effectively eliminates the grand jury's efficacy as a bulwark.

Until 2014, the DOJ reported the number of "proceedings before grand jury" in the aggregate for all United States attorney's offices. The number of grand jury proceedings rose fairly steadily from 23,925 in 1990 to a peak of 47,253 in 2010. After reporting consecutive annual drops to 41,324 in 2013, the DOJ eliminated, without explanation, further reports of this data from the annual report.

Nevertheless, the DOJ has continued to report the number of hours that the individual United States attorneys' offices spend in the grand jury. The reported grand jury hours present a stark picture of diminishing grand jury investigations and protections for citizens.

The chart below reflects, at five-year intervals from 1985 and for each year from 2006, the grand jury hours reported by the DOJ, the total criminal cases filed, and the grand jury hours per criminal case (the total for years 2005-2007 have been corrected using an average for the U.S. District Court for the District of Columbia across 2003 through 2009 given apparent reporting errors for the middle three years for that federal court).The hours per case overstate the actual hours spent on each matter in which an indictment is returned as there will be in each year matters that are investigated and for which no indictment is returned.

The drop in hours is even more startling for certain United States attorneys. In 2008, the Chicago United States attorney spent 2,718 hours before the grand jury; by 2011 that number had dwindled to 360, and would drop further to just 133 in 2018. The United States attorney in Boston spent 2,889 hours before the grand jury in 2008; in 2011, those hours had dropped to 1,281 and would further dwindle to 566 in 2018. The United States attorney in Los Angeles spent 1,353 hours before the grand jury in 2008; in 2018, these hours had dropped to 495.

One might consider these numbers to simply be erroneous reports; the drops are so prodigious. Corroboration exists. The federal courts have reported total grand jury hours and criminal proceedings filed by indictment since 2012; the courts' data reflects 36-42 minutes per indictment during the period 2012-2018. While slightly higher than the 24-36 minutes reported by the DOJ, both reports are in the same small ballpark.

The DOJ's data reflects poorly on the use of the grand jury as either an investigative tool or a bulwark against unfounded prosecutions. Where the grand jury spent on average two hours collecting and evaluating evidence in a criminal case between 1985 and 1995, by 2000, that time had been cut in half, to just 60 minutes.

The grand jury time remained relatively unchanged through 2009, when the grand jury time per case stood at 54 minutes. The time per case then resumed its slide; by 2011, grand juries were spending just 30 minutes per criminal case indicted. After rising marginally for three years to 36 minutes, the time per case has again dropped, to just 24 minutes in 2018.

In short, in a generation, the grand jury time per case has dropped from 126 minutes to just 24. Factoring in the time necessary for introducing a matter to the grand jury, swearing in witnesses, requesting the return of an indictment, deliberating, and appearing before a judge to return the indictment, grand jury time spent hearing actual witness testimony is hardly likely to be even 10 minutes per indictment returned.

Assuredly, the pandemic has not changed this trend; while most federal court orders closing court houses do not explicitly shutter all grand jury proceedings, the major United States attorney's offices have announced few, if any, indictments since early March.

In the near term, citizens called upon to serve in grand juries may be reluctant to do so in the shadow cast by the coronavirus and the potential for it to reemerge. Federal prosecutors, already using the grand jury less than they were 20 years ago, may themselves be reluctant to use them. With the reopening of grand juries by the federal courts this summer, can we expect a return to a further dwindling of their use by federal prosecutors?

The vanishing grand jury over the past 35 years marks step with the DOJ's dramatic reduction in all prosecutions since 2011. If the DOJ believes as its manual states, the DOJ must also be concerned that the grand jury, as presently used, has lost much of its efficacy as a barrier to unfounded prosecutions.

Conclusion

Beginning in 2011, the United States attorneys and the Department of Justice have substantially reduced all criminal prosecutions; with limited exceptions, that across the board reduction continued into 2018.

This drop was coupled with a reduction in the use of the grand jury as an investigative tool. In those seven years of declining prosecutions, the time spent by federal prosecutors per case in actual grand jury investigation dropped from 60 minutes to less than 25 minutes per case.

The courts have in the past refused to look behind the curtain at the extent and nature of a prosecution's presentation to the grand jury, including refusing to require presentment to the grand jury of exculpatory evidence. At some point, though, there may be a tipping point, and a court will conclude that the government's presentation to the grand jury in seeking criminal charges is so spare as to not satisfy the Fifth Amendment's requirement of a "presentment or indictment of a grand jury." With just 24 minutes per indictment, we may be at that tipping point.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

See the article here:
Will Grand Juries Ever Recover From The Pandemic? - Law360

PRESIDENT Donald Trump has asked Attorney General William Barr to personally intervene in the George Floyd investigation, citing concerns of national security and public outcry, Your Content can exclusively report.

This goes all the way up to Washington, said the individual briefed on the investigation into George Floyds death, who spoke to Your Content on condition of anonymity.

- Advertisement -

Barr, at Trumps recommendation, has asked the US Attorneys Offices to orchestrate an elite team in Minneapolis, placing them on standby and ordering them to expedite the investigation as a matter of national security.

As Your Content readers know, the Minneapolis Police Departments 3rd Precinct building is engulfed in flames as protests continue in Minneapolis and St. Paul on Thursday night.

The President seems adamant on ending the threat against law enforcement for good by bringing everyone responsible to justice.

The source said officials at the federal level are fed up with the racial discourse and brotherhood of secrecy that initially slowed the investigation down.

- Advertisement -

One officer is behaving very oddly. Anyone who invokes the Fifth Amendment is likely to get charged. Several officers have been playing the Minneapolis Police Department for years.

Your Content exclusively reported that President Trump had been briefed on the massive fire at the police department Thursday night, hinting hed be sending the cavalry in to assist.

Theres been one delay after another and the hammer is about to fall. The president is playing this somewhat close to the vest.

Washington said the officers savagery must be met with a commensurate response. A memo circulated noted: Ferguson. History repeats itself and history is on our side in this fight!

Barr was told to take charge, take action and indict immediately, the insider continued. Arrests are coming. Its a matter of time. And the clock never ticked faster.

On Thursday, multiple law enforcement sources exclusively told Your Content that charges should be expected within the next 96 hours.

There will be at least two arrests within the next 96 hours, the insider said. There is a 100 percent chance that two of the officers will be charged in that time-frame.

President Trump took to Twitter Thursday night but was quickly censored.

I cant stand back & watch this happen to a great American City, Minneapolis. A total lack of leadership. Either the very weak Radical Left Mayor, Jacob Frey, get his act together and bring the City under control, or I will send in the National Guard & get the job done right, President Trump declared.

These THUGS are dishonoring the memory of George Floyd, and I wont let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!

The deadly protests in the Twin Cities were sparked by the death of 46-year-old George Floyd, a black man who died Monday after a white police officer kneeled on his neck for several minutes ashe was being arrested over alleged forgery.

Stay with Your Content for the latest updates. Have a story or news tip? Contact our 24/7 newsroom at 833.336.8013.

See the article here:
Pres. Trump Urging AG to 'Take Action' and Indict Minneapolis Cops: 'Matter of National Security' - YC

All four former Minneapolis cops involved in the death of George Floyd have invoked their Fifth Amendment right to silence as investigators probe the case, according to a report.

Officers Derek Chauvin, Thomas Lane, Tou Thao and J. Alexander Kueng have refused to answer questions about what led to Floyds death, citing their right to avoid self-incrimination, Hennepin County Attorney Mike Freeman told CNN following a news conference Thursday.

However, Thomas Kelly, the attorney for Chauvin the white officer captured on camera pinning Floyd, who was black, to the ground by his neck denied his client invoked his Fifth Amendment right following the report, according to Newsweek. Freeman did not return a request for comment from the publication.

As protests rage over the incident, Freeman said his office has been flooded by emails demanding to know, What are you going to do about the murder of George Floyd?

But while Freeman condemned the now-fired officers actions as graphic and horrific and terrible, he said the footage alone isnt enough to bring charges.

He vowed to conduct an investigation as expeditiously and thoroughly as justice demands, adding that hes reviewing the case of Freddie Gray for guidance. Gray, a 25-year-old black man, was killed while in police custody in Baltimore in 2015.

The question in my business is, is it criminal? Freeman said at the Thursday news conference, according to Newsweek.

Thats what I have to prove and there are cases that you can quickly and easily evaluate. Most cases, particularly cop use-of-force cases, are specifically more complex and have to be done right.

None of the four officers had been charged Friday.

Viral video footage of Chauvin pinning Floyd down before his death on Monday sparked nationwide protests, some of which have turned violent.

Read the rest here:
Cops involved in George Floyd death invoke Fifth Amendment right - Filmy One

Minnesota Attorney General Keith Ellison said he expects "there will be charges" filed against all four Minneapolis police officers involved in the death of George Floyd, though he cautioned that they would wait for a "very strong case" before doing so. Floyd, 46, died on Memorial Day after he was confronted by four police officers for allegedly trying to buy cigarettes with a counterfeit $20 bill at a shop located in the 3700 Block of Chicago Avenue South. In a now-viral video that has been viewed millions of times, Floyd is seen getting dragged out of his car and made to lie on the ground, at which point an officer, later identified as Derek Chauvin, kneels on his neck.

The 46-year-old can be heard pleading to Chauvin that he couldn't breathe before eventually passing out and becoming unresponsive. He was declared dead at the Hennepin County Medical Center a short time later. The incident was widely condemned, with Minneapolis Mayor Jacob Frey stating it was "completely and utterly messed up" and that Chauvin "officer failed in the most basic human sense." He later called for prosecutors to arrest and charge all the officers involved in Floyd's death. "If most people, particularly people of color, had done what a police officer did late Monday, they'd already be behind bars," he tweeted. "That's why today I'm calling on Hennepin County Attorney Mike Freeman to charge the arresting officer in this case."

Following widespread protests across the country, which turned violent in Minneapolis and saw demonstrators burn down a police precinct, Chauvin was arrested and charged with third-degree murder and manslaughter on Friday, May 29. Ben Crump, the attorney representing Floyd's family, said they were relieved Chauvin was arrested but that he should be charged with first-degree murder."The family does not trust the Minneapolis police department or anyone affiliated with the Minneapolis police department," he said. "We understand they did the same thing to Eric Garner and we're not going to allow that to happen this time."

However, Ellison told CNN that they need a "very strong case" before announcing further charges. "Everybody believes that this is a violation of Mr Floyd," he said. "And I believe that everybody wants to see these charges filed as soon as they can be. But again, I do want to say we have seen cases that seem so clear go south." He conceded that "unfortunately, it is taking more time than any of us want" and that he sympathizes with everybody who is "demanding charges." While Chauvin has been arrested, and the three other officers involved in the incident -- J Alexander Kueng, Thomas Lane and Tou Thao -- have been fired, all have indicated that they will not be cooperating with the investigation. "Hennepin County Attorney Mike Freeman says the officers involved in #GeorgeFloyd death are not cooperating with law enforcement," Fox9 reporter Courtney Godfrey tweeted. "They are pleading the 5th." The Fifth Amendment prohibits defendants from self-incrimination and double jeopardy and mandates due process of law for anyone facing criminal charges.

Go here to read the rest:
Cops involved in George Floyd's death refused to cooperate with investigation, pleading the 5th: Minnesota AG - MEAWW

By Vickilyn Alvey

When I was in nursing school, I was surprised to learn that patients have a right to fall.

The concept, then, and now, was based upon a persons right to choose due to informed and voluntary consents. Patients have a right to understand treatments, the purposes of them, potential risks and benefits, etc. Patients also have the right to be free from coercion, constraint and force. If a patient chooses not to participate in a procedure that can cure him/her, that right is upheld. People have the right and freedom to direct their own lives.

Although those initial lessons in patient rights occurred over 20 years ago, the COVID-19 pandemic raises similar issues. Do people have the right to catch COVID-19, or is it more a question of whether people have the right to possibly spread COVID-19? Perception defines responses.

People have been in lock-down for the past two months due to a virus that we still know little about. After months of researching, scientists definitively know that COVID-19 is a virus. Beyond that, the data is conflicting. That which is unknown is infinitely greater than that which is known. Every other week, information changes. Vague, incomplete and terrifying data is reported daily. It is scary.

Just as scary to millions is watching businesses, some that have existed for generations, disintegrate, day by day. That fact, unlike COVID-19, is clear to those business owners and to their employees. It is more terrifying to them than possibly catching COVID-19 and dying.

Most business owners are risk-takers, so reopening is not as much a matter of life and death as it is an innate need to provide for their families, employees and communities.

The Fifth Amendment of the United States Constitution states, No person shall be deprived of life, liberty, or property without due process of law. The 14th Amendment also states, [N]or shall any State deprive any person of life, liberty, or property, without due process of law. Those rights exist and were created to protect the individual from governmental oppression.

Despite those rights, states have a fundamental duty to protect the publics health and safety. In doing so, they may exercise a latent police power.

States must take action to assure that the publics general welfare is protected. However, determining proportionality of those actions and the overall benefit to the public has become a matter of heated debate. Each position holds valid and weighted arguments. When the scale of legitimacy moves in either direction, outbursts from the opposition occur.

As a nurse, I am aware of physical issues, treatments, etc. related to the body.

COVID-19 is real. It is a virus that has and will continue to spread. Some will tragically die. Some will recover. Some will not experience it at all. Those who were critical and have recovered have horror stories to tell about the experience. Sparing others from the disease is a priority to many who have lived through it.

But the body also includes the mind. The psychological make-up of a person is just as significant, if not more so. Failing to include the psychology of people into the equation of an economic-freeze is also failing to consider the general welfare of the public.

Removing a persons livelihood does more to the individual than just take away his/her income; It takes away purpose from his/her life. Having no reason to get out of bed each morning has an extreme effect upon a person. We live in a country that is based upon being productive. Removing a persons ability to do so renders feelings of worthlessness. Floundering, even if only for a few of months, can have long-term psychological impacts.

Having no purpose, no meaning in life, creates an inner void. The awareness of this emptiness leads people into states of depression and self-destructive behaviors. When ones purpose in life is pulled out from under him/her, rebounding is more than challenging. Worthlessness consumes the individual.

Contributing to society, to ones family, or to oneself by working, provides purpose. People have said that their jobs do not define them; They shouldnt. What their jobs do for them is validate their existence. Going to work each day, no matter what the job, provides people with a means to substantiate their purposes.

I personally believe that the life of one individual, regardless of position or status in life, is the most valuable gift each of us is given. Whether homeless, or serving in the House, that individual has worth. Loss of a persons life due to a horrible virus, or from ones own hand, yields the same result: Death. No one wins, least of all, society.

In Henry David Thoreaus essay, Civil Disobedience, he states, But where there is one, there is a majority of one, and, when the rights of the majority take away from the rights of the one, then the many will themselves suffer (Aesthetic Papers, 1849). Each person has rights and each person can exercise those rights. In this country, they are not temporary rights. Every person has rights that are equal to every other persons. Your rights have no more power than mine, nor are mine greater than yours.

Every day, people are protesting closures across the country. Others argue that things are re-opening before they should. Each state has different circumstances, so each governor is directing the situation for his/her state. Some argue that this governor, or that governor, is making the wrong decisions, one way or another. Maybe they are, but this is one of the messy parts of living in a free country based on a Constitution that gives rights to the people. At some point, Constitutional interpretation fades and the recognition of what is, is.

Instead of politicizing wearing masks vs. not, opening vs. remaining closed, eating out vs. staying in, maybe it is time to exercise some of that tolerance that those from both sides of the argument speak of when convenient.

Awareness is limited to ones reality. You, nor I, can identify with it because we are not the other person. That which is destroying my neighbor may not be a blip on your radar. That which is psychologically controlling you may not be a drop of water in my pool.

Medically, will there be cases of COVID-19 that otherwise would not have occurred if businesses remained closed? Absolutely. Will there be extreme harm if businesses do not open? Absolutely. There will be pain, suffering and loss of life regardless of position held.

Every day one gets out of bed, he/she takes a chance. People slip in showers, fall, hit their heads and die. A person could be driving on the interstate and a tire from the street above could dislodge from a semi-truck, bounce onto the interstate and land on top of someones vehicle. A person could experience a cardiac arrest, fall to the ground and breathe his/her last breath. We never know what is going to happen each day, which is why we should appreciate every moment.

In January, did you anticipate that your spring would involve teaching your kids from home, standing in line for hours outside Costco hoping to buy some toilet paper, or wearing a mask on a day other than Halloween? We do not know what will occur in the hours to come.

Making the effort to understand anothers position on COVID-19 issues may not solve the current ills of society, but hopefully, it will extend a bit of compassion to ones opposition.

Diverse perceptions have enabled this country to create and transform the world. It is a good thing. So, choose to live life as you believe to be the best for you, and dont hinder others from doing likewise.

And, also, be mindful that it may not be safe to open restaurants, gyms or retail stores, but here, where we live, patients have a right to fall.

Editors note: Vickilyn Alvey, RN, MSN, MC, grew up Litchfield Park. She is a graduate of Agua Fria High School and has worked as a nurse for 24 years. She holds a masters degree in counseling, paralegal certification and has been a licensed real estate agent for more than 30 years.

Read more from the original source:
Guest commentary: Open or close? The messy parts of living in a free country - Your Valley