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Why are prosecutors issuing “reports”?

Why are prosecutors issuing “reports”?

The role of prosecutors in the American system of justice is to investigate crimes and indict alleged criminals.  Normally, their investigations are kept confidential until they are ready to charge.

We have seen that process played out endless numbers of times.  That is not to suggest that the prosecutorial process in America is flawless – or even as good as it should be.  I have often criticized the process as being too political, too arbitrary and too dangerous.  I have especially been critical of the God-awful Grand Jury system.

As bad as all that is, I have become increasingly concerned about the popularity of a new twist on prosecution.  That is the issue of condemnatory “reports” without actually filing charges.  This is one of those bipartisan corruptions of the justice system.  Two prime examples involve former Governor Andrew Cuomo and former President Trump.

The Cuomo case

As rumors and charges of sexual misconduct arose, New York State Attorney General Letitia James announced the launching of an investigation.  She later announced the results.  It was very damning – accusing Cuomo of all sorts of inappropriate actions against women – staffers and gals he met on the campaign trail.  As the details played out in the news media, there was heartfelt testimony from victims – even tears.

But something was missing – an indictment.  James was not charging Cuomo with any crimes based on her report.  So, what was the point of it?

Many times, prosecutors attempt to NOT inveigle the innocent – at least those they do not intend to charge at the time.  That is why you get code words like “person A” or “co-conspirator B.”  Other names are simply omitted from the indictments and related comments by the prosecutor.  The tradition is that if you are not indicting, there is nothing to say – no accusations … no innuendoes.

But that was not the case with Cuomo.  The AG’s report had only one purpose – to besmirch Cuomo’s name in public … in the court-of-public opinion.  Even more disturbing, the report was ordered and issued by a woman who had expressed an interest in running against Cuomo for Governor.

Underscoring the unfairness and the evil of James “report” is the fact that those who could have indicted Cuomo did not believe there was sufficient evidence to do so.  They dropped the charges.  What James had produced was a political document that sounded like an indictment, but was not.  It violated the very concept of a person being “innocent until PROVEN guilty”—a standard the media violates a lot these days.

The Trump case

Recent top-of-the-hour reports dealt with Fulton County, Georgia District Attorney Fani Wills requesting and getting the empaneling of a SPECIAL Grand Jury to investigate Trump’s actions in connection with the Georgia 2020 election results.  In the leftwing court-of-public opinion, the former President is indicted and guilty of attempting to overturn the Georgia results by pressing the state’s Secretary of State Brad Raffensperger to “find “11,000 assumedly nonexistent votes to flip the outcome.  

Whether Trump was asking to find votes he believed were illegal – and should have been tossed — or to create illegal votes to put him over is at the core of the controversy.  The point of this commentary, however, is not to prejudge that case, but to look at the reality of the District Attorney’s actions.

You will note that I emphasized the word “special” above.  That is because there is an important difference between a typical Grand Jury and a SPECIAL Grand Jury.  The major distinction is that a Special Grand Jury does not — repeat, NOT — have the power to indict.  They can only issue … a report.

That’s right.  They can subpoena witnesses.  They can review “evidence” – but only what the prosecutor provides.  There is no opportunity for a defense.  (By the way, that is the fundamental flaw of the Grand Jury system – which only America and Liberia have.)

So, why empanel a Special Grand Jury when the prosecutor could have called for a regular Grand Jury – or even investigated and indicted on her own?  There seems to be only one reason, Willis was not confident that she could get an indictment and conviction.  Maybe she does not want to go to trial.  The Special Grand Jury, however, will hand her a one-sided document that has political value in the court of public opinion.

We have heard calls for election reform and police reform, but arguably the most important reform in America might be prosecutorial reform.  More about that in a future commentary.

So, there ‘tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

16 Comments

  1. Ben

    Over the last 30 yrs or so our prison population has grown exponentially. BLM has made this a major talking point. Criminal Justice is unjust.

    Now that it’s impacting white people, people like Larry and his ilk are starting to take notice. It’s nice that we can agree on something.

    • Jerry

      BLM should police their own people. They think people should kiss their asses. Not on my watch

    • Rat Wrangler

      Our prison system has always impacted white people. More whites than blacks are incarcerated today, according to federal and state numbers.

      • larry Horist

        Rat Wrangler. But I will concede that proportionately, more blacks a sentenced to prison than whites — and dramatically outnumbered from Democrat jurisdictions. Two things can be true at the same time. The crime rate is much higher in the segregated minority communities — black and Hispanic. That accounts for SOME of the disparity. But the unequal and racist application of justice in the Democrat one-party cities is sending a lot of blacks and Hispanics to the hoosegow for crimes that whites have lesser sentences or no jail time at all. Often less arrests and less indictments. Those are just the facts.

  2. larry Horist

    Actually, the issue of incarceration is not impacting on me. Never been to jail. But … I have long written against excessive incarceration of minorities — especially for minor crimes when compared to white rates. Of course, you know who has been putting most of those young black men in jail. Actually, you probably do not know. The prisons are packed with prisoners sent there by Democrat-controlled police departments, prosecutors and judges . There are two reasons for the excessive incarceration. It is a fact that the crime rates are higher in segregated black communities AND the Democrat judicial system in those communities tend to throw the book at blacks for even minor offenses. Those are facts upon we should be able to agree.

    • frank stetson

      I would say you might have some misspeaks here but you keep repeating a few of these themes: segregated America, racist cruel and unusual incarcerations, partisan legal system, all caused and maintained only by Democrats…

      “The prisons are packed with prisoners sent there by Democrat-controlled police departments, prosecutors and judges . There are two reasons for the excessive incarceration. It is a fact that the crime rates are higher in segregated black communities AND the Democrat judicial system in those communities tend to throw the book at blacks for even minor offenses. Those are facts upon we should be able to agree.” Crime rates are higher in lower income communities. Black’s still predominately live in lower income city neighborhoods. Democrats run most cities, but 26% of them are run by Republicans. I am not sure this is just a Democrat issue.

      The Clinton Crime Bill caused a lot of this: Clinton is a Democrat. The Bill passed the Senate by a 95/5 vote. That does not sound partisan, does it?

      “Democrat judicial system” Wow, now we have Democrat judicial systems, meaning we must have Republican judicial systems, according to Larry. Should we just call it a day for the Republic and find an autocrat to run the nation again? I guess it’s a Republican SCOTUS too. I liked being a nation of laws, a nation of partisan courts is the end of all that.

      I find it interesting you claim it’s all about the Democrats. Sort of let’s you off the “systemic racism” issue by only blaming one party.

      And you keep harping on “segregated black communities.” Can you name those or is it just anywhere lower income folks live? Who is doing the segregation? What policies or actions are creating segregated communities?

      Here’s a good update on segregation, you are correct, it does seem to exist, although I don’t see where it’s solely caused and maintained by Democrats. https://en.wikipedia.org/wiki/Racial_segregation_in_the_United_States#:~:text=Black%2DWhite%20segregation%20is%20consistently,in%20the%20Northeast%20and%20Midwest.

      It appears to occur mostly in The Rust Belt which is defined as: “The Rust Belt runs southwesterly from Central New York through Pennsylvania, Ohio, West Virginia, Kentucky, Indiana, and then northwesterly through the Lower Peninsula of Michigan, northern Illinois, northeastern Wisconsin and Minnesota.” wiki Is that only Democrats?

  3. John Shirley

    Sorry, you’re wrong about a, “special grand jury”. They can indict. In fact, as a U.S. Customs Service Agent in the mid ‘80s, I encouraged the U.S. Attorney in South Carolina to impanel a Special Textile Grand Jury, to investigate violations of textile importation laws. The “special” terminology was related to the subject matter of the investigation, not restrictions on their power to indict. This could have changed since then, but I don’t think so.

    • larry Horist

      John Shirley … Here is one of several news reports explaining the Special Grand Jury. This one from US News. My emphasis added.

      “A special grand jury has no set term and focuses on a single topic. Unlike a regular grand jury, a special grand jury can subpoena the target of an investigation to appear before it, former Gwinnett County district attorney Danny Porter said. When the investigation is done, a special grand jury produces a report on its findings BUT CANNOT ISSUE AN INDICTMENT.”

  4. frank stetson

    On your actual article, I think convicting in the court of public opinion has been with us, bipartisan, across the years, usually for a prosecutor to leverage a plea, combat defensive swaying of the jury pool via trial by media, etc.

    I wonder also about “leaks” or press releases coming from the 1/6 special investigation offering tidbits, mostly not complete, “insights” into the goings on that are not public….yet. Seems inappropriate at best.

    Amazingly, one of the only walls that has held is IRS release of Trump tax tidbits…….not even a whistle blower or “deep throat” type of leak.

    Secrets are fleeing: “Military secrets are the most fleeting of all.” Spock.

  5. Tom

    I agree with you Larry. It seems like “reports” can be more damning then the charges. In the case of Cuomo it was said at the time that Cuomo had some sort of immunity and could not be charged due to his office. I found that astounding as it is to me at least a free pass to do whatever you like. Friends of mine in NY said the Cuomo family is like a crime family and that they handled it all under the table somehow . With regard to Trump, he is brilliant at riding the seams of just about anything so that nothing sticks to him.

    Now on jury selection, yes it is biased against black people as well as smart people. Watch https://www.youtube.com/watch?v=cPRK_ABldIk and if you want to really be scared, watch Jack McMahon, DA Philadelphia, 1997 training and see how he eliminates blacks and smart people. He says its all about the DA winning, not about justice, and smart people like Larry, Moe, and Curly Frank, as well as black people are not good jurors for winning a case. You will be stunned by this training! https://www.youtube.com/watch?v=Ag2I-L3mqsQ

  6. John Hewett

    The release of pre-trial “reports” is shameful. Matter of fact, any release of information to the court of public opinion should make that information and/or evidence inadmissible during a trial. Anyone who releases information in the court of public opinion and no trial or indictment ever materializes should be charged with prosecutorial misconduct.

    • larry Horist

      John Hewett .. One of the most common responses of prosecutors is that they cannot discuss a case under investigation. It is a crime for a juror in a grand jury to reveal any information — although that law is hardly enforced. You are right. The use of the court-of-public-opinion to try cases is shameful — and often illegal. Even in open trials, judges will often tell the parties — plaintiffs, defendants, and jurors — to not speak to the press. The idea of issuing a damning and accusing report and not indict is very dangerous to the rule-of-law .. and the presumption of innocence until proven guilty. You are spot on, John.

  7. Ben

    Oh snap, maybe prosecutors are issuing reports because trump finally said the quiet part out loud.

    Former President Donald Trump on Sunday admitted in a written statement that he wanted his former Vice President Mike Pence to “overturn the election” and railed against efforts to put laws in place to prevent something like that from ever happening.
    “If the Vice President (Mike Pence) had ‘absolutely no right’ to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?” Trump said in the statement, continuing to peddle his lies that the 2020 election was not secure.

    “Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!”

    Oops, thank goodness trump is so incompetent.

  8. frank stetson

    Trump is incompetent? Hardly. It’s his believers and the “nose holders” who are incompetent continuing to prop up this autocrat dictator-wanna be, with their attendance and vast donations. He makes hate pay and now he is fighting for his freedom.

    This weekend at his latest Nurnberg rally in Texas, he says he will pardon the convicted 1/6 criminals found guilty in a court of law. Probably incarcerated by Socialist Democrats, in a Socialist Democrat-controlled judiciary, totally partisan, right Larry? The pictures we see are fake, msm lies, Congress lies, the accounts by victims and perpetrators are lies, unlock them up, free the 700. Das Trump is calling for a 1/6 type racial civil war IF he is indicted as the Texans waited in a mile long line, waving their Confederate Flags with all that supports. Racial? Turns out a number of the prosecutors investigation Trump are black. Then, Trump said Biden was a fake, the real one was killed at Gitmo. Let the Night of the Long Knives be rekindled.

    Republicans keep telling us to ignore than man behind the curtain, that they really are better than that, but at this point he’s looking to step back on the stage, the walls are closing in, he knows his only way out is re-election to President, violence, or both. He is still the leader of the Republican party, few will cross him, no one will cross him for fear of being primaried by the past President. Lyndsey Graham spoke out calling the remarks “inappropriate.” Oh my said George Takei. I don’t see many Republicans just saying NO. ENOUGH. STOP.

    When will Real Republicans stand up and call this for what it is: unAmerican.

    As this man goes under, the shit will get very, very deep. The barbarians are at the gate.

    • STanley

      Trump syndrome. Help is available Frank

      • frank stetson

        Good, because anyone like you who believes his lies certainly needs the help.

        Stanley, if you want to discuss issues, with supporting facts, figures, etc; feel free to give it a try anytime.

        If you just want to be funny, call people cute little names, try the schoolyard.