Grand Jury Not All About the Numbers

Q: What is a “grand jury?”

A: Before I went to law school, I often wondered what was so “grand” about a jury anyway. The talking heads on TV often said smart things about, “the grand jury did this” or “he was brought before the grand jury.” It all sounded so secretive, so filled with intrigue. It really irked me that I did not know the first ting about the grand jury.

In law school, I finally got to peak behind the veil of secrecy that is the grand jury. You know what I saw? I learned that a grand jury is a really big jury. Hardly the stirring answer I wager you expected.

Okay, that is only part of the answer. It is true that a grand jury is bigger than a petit jury by at least four people. A grand jury, in West Virginia, is made up of sixteen persons, whereas a petit jury – the typical jury that you normally think of – consists of six (for civil trials) or twelve (for criminal trials) persons. In some U.S. jurisdictions, grand juries can be made up of as many as twenty-three persons.

But size is not all that matters when it comes to defining a grand jury. Function is of prime importance. A grand jury decides whether the facts of a given situation are sufficient to issue an indictment and, in so doing, begin the criminal trial process. Prosecutors spend hours presenting the grand jury with facts and law in an attempt to demonstrate why so-and-so should be tried for such-and-such crime. If at least twelve of the grand jurors agree that there exists probable cause that a person should be tried for the crime charged, an indictment is issued and the criminal process begins.

Grand juries are required before any American can be tried for the commission of a felony. That is a guarantee secured for us by the Bill of Rights of both the U.S. Constitution (Amendment 5) and the Constitution of West Virginia (Article III, Section 4). Why is a grand jury among the foundational rights of the American system of governance?

To answer that, we must go back to the year 1215 and a field called Runnymede when King John signed the Magna Carta guaranteeing the first grand jury. Up to that point, if the King charged someone with a crime – justly or not – the person stood charged and, often, summarily tried, convicted, and sentenced. The grand jury interposed an objective and independent group of peers into the process. They effectively required the sovereign to give good evidence and just cause before someone was sent to trial. Our founding fathers noted that this idea was in keeping with the core principles of freedom and fairness and adopted the concept, as now embodied in the Fith Amendment.

Today, the U.S. is one of the only countries to still use the grand jury system. Other countries have similar procedures in place to make sure the government does not unjustly try innocents for crimes they did not commit, but few are like the grand jury system we employ. And, of course, some countries are still ruled by the whim and fancy of the despot.

Without such a stopgap, a government’s reach could do silently what its citizenry would never permit it to do, if done publicly. The grand jury, therefore, is yet one more hallmark of freedom in the governance of, by, and for the people.

Copyright: Jeremiah G. Dys, 2007. May not be used absent the express, written permission of the author. For permission to reprint, please contact the author.

Beware the Implications

Q: Does “caveat emptor” still hold any meaning in modern business?

A: How many of you took Latin at some point in your education and actually remember what this term means? Okay, the three of you in the back row can put your hands down. Now, how many of you actually work this term into conversation on a routine basis? Anybody? Anybody? Bueler? Bueler? I thought not.

For the benefit of the rest of us who do not have our Latin-Modern English dictionary at the ready, “caveat emptor” is a phrase that literally means, “let the buyer beware.” It is an axiom used to encourage buyers to use caution in what they purchase. If the buyer is truly being aware, he will know his rights in relationship to the product he is purchasing. It further implies the buyer does a certain amount of “due diligence” before he buys the thing, just to be sure that the product is what is advertised.

Conversely, the maxim is a phrase just as widely bandied about by merchants. By saying, “let the buyer beware,” the seller is attempting to disclaim responsibility for a faulty product. “Hey,” the angered purchaser snaps to the merchant, “this widget you sold me fell into a million pieces the moment I got it home. I want a refund.” How will the merchant respond? You guessed it: “Caveat emptor.”

Today’s marketplace is certainly a far cry from the bazaars of old, where this phrase, no doubt, had its origination. Does caveat emptor still hold sway in today’s business scheme? Say it with me class: “It depends.”

In days of old, it was difficult, if not impossible, for buyers to truly know if what they were buying was filled with so many defects that the product would be rendered useless as soon as it was sold. Today, the savvy buyer has the advantage of being able to research the product and company before buying their product. The Internet, Consumer Reports, and the Better Business Bureaus allow a buyer to determine whether the seller and his product is as reputable as the infomercial claims. Thus, in a certain sense caveat emptor is still of some effect. As the buyer, you have a limited duty to make sure the seller is trustworthy.

But, that duty does not absolve all sellers. Today, the idea of caveat emptor has been replaced with the doctrine of “implied warranty.” An implied warranty basically asserts that the given product will work as it is advertised to work, absent negligence. This a seller cannot disclaim. In other words, if a seller claims that the widget he has for sale will slice and dice, but actually explodes into tiny bits of shrapnel, the seller may be liable based on the implied warranty of fitness for a particular purpose.

You will remember from a previous column that waivers and disclaimers that attempt to bar liability are permissible, unless they run afoul of public policy. To disclaim a harmful product by saying, “caveat emptor” is as vacuous as putting a license plate on one’s car that says, “Not responsible for injury or death as a result of this vehicle.”

Being an aware buyer, regardless of what warranty is (or is not) implied, is probably the best method for staving off a lawsuit.

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Copyright Jeremiah G. Dys, Esq. 2007. May not be used absent the express written permission of the author. Please contact the author for permission to reprint.

Judicial Numbers Tough to Predict

Q: Should the West Virginia Legislature give Monongalia County another judge?

A: As it stands right now, the West Viginia Legislature is considering adding another judge to the 17th Judicial Circuit of West Virginia, or Monongalia County. It is appropriate that Legislature consider doing this for a variety of reasons.

The first reason that pops to mind is that it is constitutionally mandated to align the circuits once every eight years. That is, it is the unique province of the Legislature – not the Supreme Court, not the Governor – to determine whether or not the circuit courts ought to be realigned or whether more (or less) judges should occupy such circuits. Thus, it falls to the Senate and House of Delegates to consider wisely what it will do.

There are, essentially, two options. The Legislature could suggest that the circuits be realigned. Presently, there are 31 circuits throughout the State. Obviously, there are more counties than circuits, so it stands to reason that some circuits cover more than one county. Realignment suggests that one county may not have as busy of a docket as another and, so, the counties are combined to make one circuit. This involves a lot of redistricting that, for historical and political reasons, is not a favored method management.

The other option, therefore, is to add or subtract judges within the presently existing circuits. To do this, our legislators consider the circuit’s population to judge ratio, the size of the docket within the circuit (what we call, “caseload”), and other intangibles. The goal is to have enough work to keep a judge good and busy, but not so much that justice is delayed.

That brings us to Senate Bill 400. Having already passed the West Virginia Senate and now pending in a House of Delegates committee, SB 400 provides for five new judges to be added to five judicial circuits: the 24th (Wayne), the 30th (Mingo), the 9th (Mercer), the 22nd (Hampshire/Hardy/Pendleton), and the 17th (Monongalia). The House of Delegates ought to affirm the bill as presented by the Senate. Although, that is a bit more difficult now since, as of Friday, the House Judiciary Committee added another judge to Kanawha County’s present roster of seven judges.

Monongalia County is among only a few counties whose general population is trending upwards, rather than downwards. That is, more people are moving and staying in Monongalia County than anywhere else in this state, with the possible exception of the eastern panhandle. With more people, comes increased litigation. Without adding another judge to the two that already sit on the bench here, justice will be often delayed. Justice delayed is justice denied.

The numbers agree with the bill. Looking at the population to judge ratio, Monongalia County has over 41,000 people per judge. That is currently the third highest ratio. If a judge is added, as proposed by SB 400, then Monongalia County becomes the first in population per judge with almost 28,000 people per judge. With population, caseloads, and crimes trending up, it is quite clear: Monongalia County ought to receive another judge.

But, there is perhaps one consideration that is often overlooked in the arguments about judicial realignment. The West Virginia Constitution mandates that this realignment process take place every eight years. In other words, should the Legislature fail to act this year, it might not be until 2015 that this question would even be considered again.

Better forecasting than the weather channel is absolutely imperative. By 2015, which is more likely to have more people: Monongalia County or a southern West Virginia county? By 2015, whose caseload is more likely to be spiked by an increase of business disputes and criminal complaints that an increasing population brings: Monongalia County or one of some fifty counties shown to be generally declining in population? The question, therefore, becomes how good is the Legislature at forecasting?

Can Monongalia County get along without another judge? Perhaps for now it can, but now is not the timeframe to be judged. Tomorrow is. With that timeframe in mind the answer to the question is an emphatic, “yes!"

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Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.