Douglas Empanels Grand Jury Prosecutor Says Victims Will Be Protected; Defense Attorneys Say Suspects’ Rights Will Be Violated By Secret Hearings

The Kootenai County prosecutor says he’s protecting sex crime victims.

Defense attorneys say he’s planning secret court hearings that deprive people of their civil rights.

The issue: a grand jury - a common but controversial legal tool that hasn’t been used in Kootenai County since the 1970s.

With the approval of Judge James Judd, Prosecutor Bill Douglas last week empaneled 16 citizens, empowering them to investigate and indict people on felony crimes such as rape, lewd conduct and drug trafficking.

They will do so outside the presence of a judge, the suspected criminal and the suspect’s attorney. And they will conduct their proceedings in complete secrecy.

“It is a sad day for the citizens of North Idaho,” said Tim Gresback, a Coeur d’Alene defense attorney. “Secret proceedings are un-American and certainly are not needed in North Idaho.”

Douglas contends his grand jury will protect the innocent. Victims of sex abuse will have to testify one less time under the menacing eyes of their attacker, he said.

And “the nice thing about the grand jury process is that it gives the citizens involvement in making these charging decisions,” Douglas said.

Grand juries are provided for in the Idaho Constitution. They are used in the federal court system and are common in Eastern states.

In Idaho, however, they are used regularly in only three counties: Twin Falls, Ada and Canyon.

Spokane County Prosecutor Jim Sweetser said they are used even less frequently in Washington. He said he can’t remember a case in which one was used in Spokane.

In normal circumstances, Idaho prosecutors file charges based on allegations from police or citizens.

Anyone accused of a felony crime then has a preliminary hearing conducted publicly in the courthouse.

At this hearing, the prosecutor tries to prove to a judge that the accused criminal “more likely than not” committed the crime.

The defendant is present along with his attorney. The defense attorney can question the witnesses and can give a statement on the client’s behalf.

If the judge thinks there is enough evidence to support the charges, the case is bound over for trial. If not, the case is dismissed.

A grand jury convenes in secret and before the suspected criminal has been charged with a crime.

A prosecutor presents the case and has witnesses testify. The defendant and defense attorney are not there to cross-examine the witnesses. No judge is present.

Under Douglas’ plan, members of the grand jury serve for six months at a time and are paid $10 for each full day they work. They have broad investigative powers and can question witnesses and demand records.

If 12 of the 16 jurors agree there is enough evidence, they indict the suspect.

It will be up to the prosecutor to decide which cases go before the grand jury and which cases go through the preliminary hearing process.

Douglas said the preliminary hearing system still will be used in many cases. But he said he intends to use the grand jury much as they do in Ada County - primarily for sex crime cases but also for some drug cases and complex fraud cases.

In 1995, there were 37 cases in which children were the victims of sex crimes in Kootenai County, Douglas said.

At a preliminary hearing “we’ve got to have these young victims there under the glaring eyes of the defendant - that’s not fair to the victim and is not consistent with the search for truth,” Douglas said. With a grand jury “young child victims don’t have to face their tormentor.”

Holladay Sanderson, head of the Coeur d’Alene Women’s Center, supports Douglas’ grand jury move.

The victim still would have to face their accused attacker at a trial, but “I am absolutely in favor or anything that lessens the number of times the victim has to tell their story,” Sanderson said.

Wayne Longo, a state drug investigator, likes the idea of a grand jury for certain cases. He said it will help him keep the identity of informants secret for a longer time.

Douglas said the grand jury’s ability to subpoena documents also would help streamline convoluted fraud cases.

Many defense attorneys are far less enthusiastic.

Gresback says the grand jury contradicts that part of the judicial system that gives suspects the right to confront their accusers and be represented by counsel.

“I think it’s a real mechanism of depriving defendants of their civil rights,” said David Nevin, president of Idaho Attorneys for Criminal Justice and the attorney who defended Kevin Harris during the Randy Weaver trial.

“It is all orchestrated from the prosecutor’s standpoint,” said Ron Coulter, Kootenai County chief public defender.

Gresback believes such an unbalanced hearing will make it easier for a prosecutor to bring unsubstantiated charges. He and other defense attorneys contend grand juries sometimes “rubber stamp” the prosector’s request for indictments.

“A grand jury will indict a ham sandwich if a prosecutor asks it to,” said Nevin.

Nevin said he’s gotten grand jury indictments thrown out in Boise. He believes the Ada County prosecutor’s office kept a grand jury longer than its term because the jury was sympathetic to the prosecutor’s wishes.

The last time a grand jury was convened in Kootenai County was in 1977 when it indicted several sheriff’s deputies on statutory rape charges.

In the end, none of the accused deputies was convicted - at least one because of a lack of evidence.

Judge Gary Haman said Douglas had approached him several times in the past about grand juries when he was administrative judge. Haman said he opposed Douglas’ requests.

“I was never convinced the benefits outweighed the potential problems,” he said.

Haman, who spent eight years as prosecutor, said he always has preferred open preliminary hearings.

But at least one Coeur d’Alene defense attorney believes the grand jury will benefit suspected criminals.

Harvey Richman said it will be harder for a prosecutor to convince 12 people that a suspect should be charged than it would be for him to convince a single judge.

Also, if a grand jury decides not to indict a person, no one ever will know they were a suspect - sparing them from public humiliation of a preliminary hearing.

Douglas says people may not like the grand jury process, but he says it’s a sign that “Coeur d’Alene is no longer the sleepy little town by the lake.

“Our crimes have become more complex and the seeds of destruction have become more organized. The grand jury increases the weapons in our arsenal.”

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