DA Zappala should forgo the grand jury

For the sake of public confidence and fairness

It may be legal but it doesn’t make it right. Or fair. Or just. “It” being the indicting grand jury. Use of the indicting grand jury in Allegheny County by District Attorney Stephen A. Zappala Jr. has risen dramatically in 2019 with 79 indictments returned as of Oct. 9. That compares with 22 in all of 2018. In years prior, the number hovered in the teens.

Functioning as a secret court composed of citizens who are asked to weigh the government’s case against a given suspect, it is void of the typical protections of due process. Neither the suspect nor his attorney is privy to the prosecutor’s evidence. Witnesses, who are compelled to testify via subpoena, do not undergo cross-examination. The defense is not guaranteed discovery — access to the prosecution’s evidence — until a couple of months before trial.

The entire process is cloaked in mandated secrecy, and it is a process that almost always yields a vote for indictment, the equivalent to the filing of criminal charges against a suspect.

When weighed with consideration of the statistical fact that the vast majority of criminal cases end in a plea agreement and, therefore, never go through a public trial, the secrecy of the grand jury system is virtually absolute and completely intolerable. Without the public trial component, none of the prosecution’s case ever is subjected to public scrutiny.

There is an alternative — one that is used almost exclusively by every county prosecutor in Pennsylvania except Mr. Zappala and his counterpart in Philadelphia. The alternative, which typically begins with a legal affidavit of probable cause (a public document that outlines police justification for criminally charging someone), involves a preliminary hearing (again, open to the public) during which evidence is presented, witnesses are cross-examined, and a district judge weighs whether the prosecution has met a particular legal standard before holding the suspect for trial in a court of common pleas.

The codified legal reason to opt out of this public system is “concern for witness safety.” How that concern is weighed for its legitimacy, however, no one knows. That’s because even the process for moving a case to the grand jury is secret. In Allegheny County, Judge Jill Rangos presides over it.

Seeds of suspicion blossom in silence and secrecy. The grand jury process nurtures suspicion of a potentially corrupted legal system and, arguably, actual corruption.

This is not a theoretical concern. In recent days, Mr. Zappala’s office withdrew felony criminal charges that had been handed up by an indicting grand jury against four teenagers. Mr. Zappala admitted the youths had been wrongly indicted in connection with a 2017 shooting that left three children wounded. Each of the defendants spent months in jail, two of them languishing behind bars for 15 months. Their defense attorneys publicly decried the secret grand jury as a factor in this miscarriage of justice.

Whether the miscarriage resulted from intent or incompetence is unknown.

There is no debate that the grand jury system tilts toward prosecutors.

There is no debate that there is an alternative equipped with greater protection for the accused — who, by virtue of American constitutional rights, is presumed innocent.

There is no debate there are other ways to secure witness testimony and witness safety, evidenced by the ability of prosecutors throughout the commonwealth — even in Philadelphia and Allegheny County — to make their criminal cases without benefit of secret grand jury proceedings.

There should be no debate that Mr. Zappala, as an officer of the court who is sworn to seek justice for all, should forgo the use of the indicting grand jury in the interest of fairness and public confidence in the legal system.