To some, the August 2023 indictments are another indication that the former president is a dangerous and out-of-control man. To others, these indictments are another phase in an ongoing witch hunt. Regardless of your perspective, these serious allegations, and the lessons they have for us, deserve our close attention.
“The indictment alleges that rather than abide by Georgia’s legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia’s presidential election result,” Fulton County District Attorney Fani Willis, whose office brought the case, said at a late-night news conference.
According to the indictment, Trump and his allies went to great lengths to undo his defeat, including asking Georgia’s Republican secretary of state to find enough votes for him to win the battleground state, harassing an election worker who faced false claims of fraud, and attempting to persuade Georgia lawmakers to ignore the will of voters and appoint a new slate of electoral college electors favorable to Trump.
A Willis spokesperson acknowledged that a criminal docket entry was posted on the court’s website before the ink was dry on the indictment, but the spokesperson declined to elaborate. Trump cited the misstep as evidence that he is the victim of Democratic prosecutors out to get him.
The Indictment Process
Formal criminal court proceedings begin with a grand jury indictment, at least in all federal felonies. The Constitution’s grand jury indictment requirement doesn’t technically apply to the states.
However, once the state grand jury indictment process begins, officials must see it through to the end. The process usually begins when a prosecutor presents a case to the grand jury for review. Then, the grand jury must determine if the state has probable cause.
“Probable cause” is a nebulous criminal law concept. Basically, it means that, based on the evidence presented, the defendant is probably guilty, although s/he must certainly have a chance to tell his/her side of the story.
Grand jurors normally rubber-stamp presented indictments. The evidence is entirely one-sided. Unless grand jurors subpoena witnesses (more on that below), they only hear from a prosecutor. A Marietta criminal defense lawyer cannot even be in the same room with a grand jury.
We’re not kidding when we say the process is one-sided. In 1985, New York judge Sol Wachtler said a prosecutor could convince a grand jury to indict a ham sandwich.
As a footnote, a few years later, Judge Wachtler was indicted for extortion in a very sordid matter. He later pleaded guilty and served about a year in a federal prison. Upon his release, he was diagnosed with bipolar disorder. Judge Wachtler, whose law license was restored in 2007, became a strong advocate for mentally ill persons.
Back to the blog. If the prosecutor’s case doesn’t convince grand jurors, which is very unlikely, they can subpoena witnesses and documents to review more evidence, or they can issue a no-bill.
What does all this teach us? If you receive a target letter informing you that a grand jury is pondering your future, don’t agree to testify so you can “explain things” and “help them understand what happened.” The process is too one-sided. Wait for the case to go to court so a Marietta criminal defense lawyer can properly stand up for you.
Joint and Separate Trials
Predictably, the District Attorney wants to try all these defendants together. Joint trials have a “shade” factor that usually favors prosecutors. If one defendant is clearly guilty, the other defendants appear guilty as well, even if the evidence suggests otherwise.
So, if officials press charges against multiple defendants for the same offense, they’re on the docket in a single case. A Marietta criminal defense lawyer may obtain a mandatory or discretionary severance.
Separate trials are mandatory if evidence is admissible against one or more defendants, but not all of them.
Assume Max and Ruby are indicted for murder. Authorities illegally seize the murder weapon from Max’s apartment. The weapon is inadmissible in Max’s trial but probably admissible in Ruby’s trial. She didn’t have a privacy interest in Max’s apartment.
The judge may authorize separate trials if a joint trial would unfairly prejudice one defendant. Note that there’s a difference between “prejudicial” and “unfairly prejudicial.” Joint trials are always prejudicial, because of the aforementioned shade factor. But at some point, they cross the line and become unfairly prejudicial.
Conspiracy Case Cooperation
“We know you’re guilty, so tell us what you know, and it’ll go easier on you” is a classic police interrogation line in conspiracy cases that might or might not be true.
To induce a suspect to make a statement, investigators cannot lie. But they can intentionally mislead suspects. For example, a police officer might say that Texas is one of the smallest states in the country. That statement is technically true. Texas isn’t the largest state in the country, which means it’s one of the smallest. However, that statement is clearly misleading.
Also beware the promise of leniency. Police officers can ask a prosecutor to go easy on a person, and the prosecutor can ask the judge the same thing. But a police officer cannot “promise” leniency any more than a boy can promise to bring fresh milk home from the store. The milk’s freshness and availability are beyond the boy’s control, and judicial leniency is beyond a police officer’s control.
Of course, this entire discussion is irrelevant if suspects assert their Fifth Amendment rights and remain silent. This assertion practically guarantees arrest. But if investigators confront suspects in an interrogation room, arrest is probably inevitable anyway.
No matter how you feel about it, the Trump Georgia indictment has some important lessons for everyday people. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.