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Editorial: Court should put an end to one-man grand juries

Michigan's Supreme Court will soon decide whether prosecutors can continue to use a legal tool that values expediency over justice. The court should rule in favor of the latter and put an end to one-man grand juries.

The investigatory and prosecutorial tactic is nearly unique to Michigan, and even within the state, is primarily employed by just three jurisdictions — Wayne, Genesee and Kent Counties.

It allows prosecutors to bypass some of the steps in bringing a defendant to trial.

The grand juror, usually a judge, reviews evidence in secret and decides whether to issue charges. Defendants are denied a preliminary examination, where typically they would be able to view and challenge the evidence against them, and how it was obtained.

All evidence is sealed and unobtainable without a court order. 

The state Supreme Court is weighing the constitutionality of one-man grand juries in the Flint water crisis prosecution of former Gov. Rick Snyder and several members of his administration.

Wayne County Prosecutor Kym Worthy, acting as a special prosecutor, requested the one-man grand jury in the interest of speeding the process of what promised to be a long trial, a spokesperson for Attorney General Dana Nessel said previously.

But the case has not been expedited. It has been more than two years and the defendants still have not had their day in court. 

Nor have they been able to see the evidence against them so they might prepare an adequate defense, as the law guarantees.

Attorneys for the defendants argue the process is unfair because it gives the prosecutor an advantage in the courtroom. Without the charging documents or advance knowledge of what the prosecution witnesses intend to say, the defendants must prepare their defense in the dark.

The one-man grand jury law was established in 1917 to deal with cases involving public corruption and gang activity, to draw testimony from fearful witnesses. Until recently, it was rarely used, largely because it was made obsolete by the adoption of investigative subpoenas, which provide prosecutors with a means of compelling testimony. Bills are pending in the House and Senate to eliminate the tool.

Prosecutors love the one-man grand jury because it makes their work easier. But even some who have used it liberally seem to — after the recent Supreme Court hearing in which justices expressed skepticism — recognize it's on shaky legal ground and have started to back off. 

The court should strike down one-man grand juries and affirm the right of defendants to mount a vigorous and informed defense of themselves.

Courtrooms should be level playing fields. The one-man grand jury clearly tilts the advantage toward the prosecution.