Special purpose grand juries -- investigative citizen panels armed with the power to subpoena records and question witnesses -- may become all bark and no bite if a recent Court of Appeals ruling stands.
The Appeals Court of Georgia dismissed the indictment of former Gwinnett County Commissioner Kevin Kenerly on July 6, finding the panel that investigated suspicious county park land purchases for more than a year did not have the authority to indict him. Kenerly had been charged with bribery for allegedly accepting payments totaling $1 million from a developer as well as two counts of failing to disclose a financial interest in properties he voted to rezone.
Gwinnett County District Attorney Danny Porter is concerned about that precedent. He plans to ask the court to reconsider and to appeal to the state Supreme Court if it will not.
"That decision could be used to entirely dismantle the special grand jury process," said Porter. "I think it has major impact. I think the decision as it stands deprives prosecutors of a valuable tool."
Kenerly's attorney, Pat McDonough, disagrees. He likened special grand juries to being investigative bodies like the police, GBI or FBI, agencies which do not have the right to indict their own cases either.
"Though the bar is extremely low for an indictment and only the state is allowed to present evidence, even hearsay evidence, at the very least the grand jury should be impartial," McDonough said.
Special purpose grand juries are rarely formed in Georgia. Typically they are impaneled at the request of prosecutors to wade through large, convoluted cases involving public corruption. Unlike regular grand juries, they can focus on one issue without a time constraint. By contrast, regular grand juries are convened for six months and hand down indictments on hundreds of cases.
In issuing its decision, the Appeals Court of Georgia essentially stated it cannot assume special grand jury members have the power to indict just because regular grand juries can. Nowhere in state law is that authority specifically granted to them.
Porter disagrees with that logic, though, and points out there are other common practices for special purpose grand juries that are derived from how regular grand juries operate. For example, the law doesn't say they should select a foreperson, that they should be paid for their time, or that they should meet in secret -- all things that regular grand juries do and special grand juries have historically done.
Not all prosecutors are upset. Cobb County District Attorney Pat Head, who chairs the Prosecuting Attorneys Council of Georgia, said the court's decision was not troubling to him.
"I do not see it as a major problem," Head said.
Only one special grand jury has ever been impaneled since the Cobb Judicial Circuit was created in 1953 and that panel did not hand down indictments, Head said. Neither did either of the two special purpose grand juries impaneled in Gwinnett County in the late 1980s.
Prosecutors can take special grand jury findings and present them to a regular grand jury, something which Porter has said he plans to do as early as July 20.
Ron Carlson, a University of Georgia criminal law professor, said he is glad this case in front of the courts. He believes special grand juries should be able to issue indictments because they are closer to the facts. He said if the appellate courts do not grant them the power to indict, state legislators should pass a law that allows it.
"We need clarification on the powers and boundaries of these special grand juries," Carlson said. "We need to know as a society how to use them."
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