What is A Grand Jury
Stolen posts from a lawyer on Reddit - - hope that person finds this here and contacts me.

Part 1 of 9

What’s a crime, what's a felony, and how does someone get charged with one?
In most jurisdictions, criminal law is set out by statute (in Colorado, the Colorado Criminal Code). A felony is any offense that is punishable by a year or more in prison. (Misdemeanors, by contrast, are punishable by less than one year in prison.)
Because the potential charges here are felonies (and GJs are not really used for misdemeanors), let's assume going forward that the crimes we're discussing are all felony charges.
So what's the first step in bringing criminal charges? The investigation. The police have the primary job of investigating crimes. To widely varied extents, the police may consult with the prosecutor’s office over the course of their investigation, or they may call upon the prosecutor’s office to assist in the investigation itself. This is to ensure that the facts being developed would be sufficient to meet the elements of the offense charged. On the other side, the prosecutor's office wants to make sure that the police are complying with the law and procedure so that the case cannot be attacked later in court. The prosecutor office also works with the police to obtain things like search and arrest warrants.
By the end of the investigation, the police present their case to the prosecutor’s office. It's the prosecutor's office that has the power to decide whether to move forward with charges.
A prosecutor in Colorado can file charges in one of two ways: (1) by information; or (2) by indictment. An information is somewhat akin to a “complaint” in civil law. It sets out the basic alleged facts and the elements of the offense(s) charged. Charges by information can be instituted in a couple of different courts in Colorado, but we don’t need to get into that. For our purposes, it’s sufficient to say that this is the far easier way of bringing charges, and is used way more often that the grand jury. For most cases, it's pretty simple to lay out a basic description of the facts, plug in the statue being charged under, and file your information.
An indictment is the other way of bringing charges. The prosecutor convenes a grand jury, and they receive a presentation of the facts from the prosecution only. (I'll get into this more later.) The prosecutor then gives the jury pre-selected criminal charges that the prosecutor thinks applies, and the jury votes whether to indict on those charges (a "true bill"), or they vote not to indict (a "no true bill"). Ultimately, however, the decision to actually indict still rests with the prosecutor. I can’t emphasize this enough: ** The grand jury does not issue indictments! ** (The media, so sloppy on this distinction.)
Rather, if the GJ votes to indict (aka issues a "true bill"), the prosecutor can either decide to move forward by filing an indictment (thereby "indicting" the defendant), or he can decline to do so. If the GJ does not vote to indict, the prosecutor either will reconsider whether any options exist to proceed by information, or he will decline to move forward with charges.
In this way, whether proceeding by information or by indictment, the prosecutor has the final say on what chargers are brought.*
(* In rare, rare, cases, if the GJ votes to indict and the prosecutor declines to do so, the Court can get involved and basically force the prosecutor to move forward with the charges. I’ve literally never seen this happen.)
In either the case of an information or an indictment, the charging document must provide sufficient information to notify the defendant of the charges being brought against him. In simple terms, what are the basic who, what, where, when, why’s, and what statutes are charges being brought under?

Okay, so either an information or an indictment has been filed with the Court, laying out the basic charges. What happens next?

The Court holds a preliminary hearing. The purpose of this hearing is for the defendant to hear the charges against them, and for the Court to consider whether probable cause to support the charges exists.

Probable cause is important. PC is the legal standard that runs throughout all of these pre-charge proceedings: In short, are there reasonable grounds to support bringing charges against the defendant? * A prosecutor is supposed to evaluate PC when filing an information or an indictment.
* Likewise, a grand jury is supposed to evaluate whether probable cause supports a vote to indict.
* The judge provides the final backstop and is the last person/entity to ask “is there probable cause (reasonable grounds) to bring charges against this person?”

By the time of the preliminary hearing, it’s usually pretty obvious whether the defendant is going to challenge whether there is probable cause to move forward. It is rare for a defendant to challenge the case at this stage. If it happens, it’s almost always on the basis of a purely legal argument. Otherwise, if there’s nothing facially deficient in the charging document, the Court will also find probable cause to proceed.

Only at that point will the Defendant receive or waive a reading of the charges, and enter a plea.

Why do I go into all of this? To point out that – regardless of the GJ’s vote in this case, there were still a number of steps that would have had to happen before the Ramsey’s were formally charged with anything.

The preliminary hearing is also important to understand if you’re BDI. I’ll get to that later.

Okay so we’ve learned that charging by information is used far more often. It’s simpler, it’s cheaper, it's less complicated, and there’s no risk that the GJ would come back with a no bill, effectively shooting the prosecutor in the foot and making his ability to bring charges much harder.

So why would a prosecutor proceed via grand jury? That’s a more complicated question, especially in Colorado. But, to keep it simple, GJ’s essentially have three advantages over proceeding by information:

(1) the grand jury is a means for the prosecution to test and hone their theories of the case – almost like a test run of the prosecution case at trial;

(2) In Colorado, the grand jury can be used both as a charging tool and as an investigative tool; and

(3) there are (arguably) some advantages to proceeding by GJ if you’re worried about the political optics.

[Assumption Alert:] I’m confident that we can safely assume all 3 of these "advantages" played a role in A. Hunter’s decision to use a GJ in this case.

First Advantage: This is really, really important to understand and it goes to the absolute heart of GJ proceedings: At the GJ only the prosecution presents their case. This is the critical difference between the grand jury and the trial itself. It is not adversarial in the slightest; in fact, it’s the opposite. The only people who are allowed into the grand jury proceedings are (1) the prosecutor, (2) the GJ jurors, and – when called or presented – (3) the documents and witness testimony supporting the prosecution’s theory of the case. (And a court reporter, who is also sworn to secrecy.)

A GJ presentation is completely one-sided. Witnesses who are called can bring an attorney to observe, but the attorney cannot speak. There are no attorneys for the “defendants” who can object to the prosecution, present alternative theories, point out prosecution weaknesses, or otherwise poke holes in the prosecution’s case. (Aside: the future "defendants" are actually referred to as “targets” at the GJ stage.) There’s not even a judge in the room to push back if the prosecution is straying outside legal boundaries.

The fact that the jurors only hear one side of the story at GJ often makes the charges and the defendant’s guilt seem completely & utterly obvious. This is the origin of the well-known saying in legal circles, “a grand jury would indict a ham sandwich.” (I.e., they'll blame anyone for anything.)

So what’s the point of this one-sided presentation? This brings me to:

Second Advantage: GJs are as much an investigative tool as they are a charging tool. Grand jurors can also be used by the prosecutor to continue to investigate a case where the leads have stalled. If witnesses have stopped talking to police, or if they refuse to produce documents, the prosecutor can ask the GJs to “subpoena” these witnesses and documents.

[Note: This is a big difference from jurors at the trial itself (called petit jurors). At the trial, jurors have to just sit there and hear the evidence that’s presented to them: They can’t ask either side to present evidence if the parties don’t do so themselves. By contrast, the prosecutor can say to the GJ: “Gee, we really want to talk to Fleet White (for example), but he’s refusing to speak to us (or will only talk to us with an attorney present).” The GJ can turn around and subpoena FW, and he has to show up and testify. (Or plead the 5th, again, something to get to later.)]

GJs can also be helpful if the prosecution suspects there are accomplices to the main targets. The prosecutor can offer accomplices immunity from prosecution in exchange for their GJ (and later trial) testimony.

Because the GJ is an investigative tool, it’s proceedings are always closed to the public, and the court reporter’s transcripts are sealed. If they weren’t sealed, the targets of the investigation would essentially be getting a free preview to the prosecutor’s case. It would compromise the investigation. Sealing the GJ also protects the target, in that if the GJ doesn’t result in an indictment, the target’s reputation isn’t dragged through the mud from a one-sided presentation of the case becoming public.

As for testing the prosecution’s theory of the case, the GJ can also be very helpful. For instance, the grand jurors can ask the prosecutor questions (this can vary by jurisdiction), and as mentioned above, they can request to see documents or witnesses if they think that information would be helpful to their deliberations. The jurors’ questions provide some insight to the prosecution: What themes resonate with the jury? What is falling flat? What are the gaps of the case that the GJ felt they needed to know more about? What do their questions reveal about any reasonable doubts that may exist about the target’s guilt?

GJ testimony can also be helpful in terms of having the prosecution’s witnesses “practice” their testimony, and for giving the prosecutor a preview into what witnesses for the defense might be likely to say at trial.

Finally, and most importantly, as I mentioned above, the prosecution selects the charges that the grand jury will vote on. If, for instance, the prosecutor gives the GJ the option to vote for first degree murder, second degree murder, and manslaughter – but the GJ only votes to indict on manslaughter - then the prosecutor has a pretty clear indication that he won’t succeed in obtaining a guilty verdict at trial on the more serious offenses. (Especially, where at trial the prosecution isn't just shooting at an empty net.)

Again, this last piece is super important to understanding the true bill in this case and what happened thereafter.

Third Advantage: The political angle. As noted above, if the prosecutor proceeds by information, the charging decision is solely in his hands. If the prosecutor proceeds by GJ, however, some people think it provides the prosecutor with some political cover. (i.e., Geez, it's not my fault we couldn't indict the Ramseys, the GJ decided there wasn’t sufficient evidence to move forward, not me!)

[Assumption Alert]: We know that the BPD was pushing hard to charge the Ramseys, but the DAs office had some doubts.

Proceeding by GJ meant that A. Hunter could pacify BPD, the public, and certain anti-Ramsey politicians, while not necessarily directly tying the DAs office to the charging decision. A. Hunter's announcement following the GJ here was very carefully worded, trust on that.

Finally, one last piece of background, and then we’ll get to this case:

Can a GJ subpoena the target of an investigation? Yes! Does the target have to show up to the GJ? Yes! Does the target have to testify? NOPE!

Okay, so if the target knows or has reason to believe that they’re the target, the Fifth Amendment right against self-incrimination comes into play: Let’s look at our Constitution folks!

“No person shall be . . . be compelled in any criminal case to be a witness against himself.”

This means if the GJ calls the target (and the target has reason to believe the prosecution could be after them), regardless of guilt or innocence, the target is going to invoke the 5th and refuse to testify.

Why wouldn’t an innocent person defend themself? (1) If you waive your 5th Am., it’s waived forever. So if you testify before the GJ, and they choose to indict, you will have to testify at your criminal trial. Not a place any defendant wants to be. (2) The 5th Am. is all or nothing. You answer any question, you gotta answer them all. (3) Anything you say at the GJ could then be used to impeach you at the trial. Lay people make a lot of inconsistent statements, but many times these are perfectly innocent (whether made by witnesses, police, defendants, or all of the above). In the hands of a good attorney on cross, however, impeachment on an innocent inconsistency can be made to look damning. (4) Technically (though often not in practice), the jury is not allowed to take a defendant's refusal to testify as an indication of guilt.

Finally, one last point: Apart from the fact that your target is likely to invoke the 5th if you subpoena him at GJ, is there any other reason why the prosecution wouldn’t want to call the target? Yes yes yes!

Although clearly not the case with JR & PR here, many GJs operate on such a level of secrecy and so under the radar that the primary target has no idea the GJ is even happening. A prosecutor can easily present a GJ case and obtain a vote to indict solely on the basis of police-collected evidence and cooperating witnesses without the target’s knowledge.

[ASSUMPTION ALERT:] This last point is also significant for interpreting the GJ events here.

Okay! That seems like enough background to start talking about this case. If you’re still with me, thank you and I hope you’re finding this informative & interesting!

Now that we’ve peeled back some of the opacity of your typical GJ, let’s talk about this case & hopefully get to your questions.

As I mentioned, there’s a couple things that make this GJ pretty unique and which should be considered in evaluating the GJ’s vote and the DA’s indictment decision here. With y’all’s permission and blessing, I’ll take them in turn.

[POINT A]: it’s pretty common knowledge that, by the time the DA convened the GJ, tensions between BPD and the DAs office were running high. The Ramseys were openly the primary targets of the BPDs investigation. The DA’s office had concerns about that focus, eventually hired L. Smit (who supported the IDI theory), and perhaps most importantly, the DA's office was peeved in the extreme about a perceived bungling of the investigation. By this point, the DA had already written an internal memo outlining anticipated Ramsey defenses, which would have drawn on all of these points.

[ASSUMPTION ALERT:] The police errors are probably the most concerning from a DAs standpoint, because if they were ever going to charge anyone (whether RDI/BDI/IDI or MartiansDI), the police errors undercut the criminal case, no matter who the defendant ultimately might be. (OJ is itself a complicated case on a zillion different levels, but let’s just go ahead and use it as a readily available example of how damaging police errors can be on an otherwise solid evidentiary case.)

With this background, proceeding by GJ makes complete strategic sense. (Though arguably was ill-timed. More on that below.)

By this point, BPD is pushing hard to charge the Ramseys. Unfortunately for them, the Ramseys & many of the potential defense witnesses were refusing to cooperate. The GJ route gives the DA an option to test their case (while maintaining some political cover.) They know the intruder theory was pretty out there in the media & the pool of the jurors is tainted already. You convene a GJ & you (a) pacify the BPD; (b) collect additional information from reluctant witnesses; © test how serious the IDI theory is resonating with jurors; and (d) you lose nothing in tipping off your targets, because they know they're the targets already.

[Note: Even if the true bills were never released, we’d be pretty safe in assuming the Ramseys were the targets because they were never called before the GJ. (see reasons for not calling targets above.)]

However, with this background in place, I’m ready to draw upon my legal sensibilities & make a pretty big assumption:

[ASSUMPTION ALERT:] I don’t believe the DA would have convened this GJ - with the Ramseys as targets - if they didn’t seriously believe RDI by that point of the investigation.

We haven’t talked yet about what the ramifications are of pursing an information or indictment that doesn’t move forward. I’m happy to explain this more later, but I’ll give you the 3-second version now: If the prosecution begins the charging process & is not successful in establishing probable cause, it cannot initiate another charging process unless and until there is new evidence to the investigation supporting a bringing of charges for a second time.

So, by the DA convening the GJ, they weren’t just rolling a dice they could easily roll again a second time. They were essentially setting a floor on the investigation & saying – we’re confident enough that there’s sufficient probable charges against the Ramseys - and if we fail to indict, we realize we’re risking our ability to do this again at a later point, unless we find more evidence after the GJ vote.

[Note: There’s also one strategic possibility that I’ll confess I haven’t fully run down: It’s possible that the DA knew they were running up on the statute of limitations (SOL) on the lesser charges. If they were concerned that they couldn’t ever convict the Ramseys for murder, but they could possibly convict them on lesser charges, then they might start the charging process earlier so as to not let the SOL on the lesser charges run out. I need to confirm, but I don’t think the SOL should have been an issue in 1998 (less than 2 years after the murder). They should have had at least a couple more years on the lesser included charges. That, plus the decision not to indict when the GJ true billed the lesser included charges, leads me to believe that’s not what was motivating their decision to convene the GJ in 1998. But like I said, I’ll check this point.]

With all this being said, if you’re solidly RDI/BDI, this decision in 1998 to convene the GJ in the first place is where you should get mad at the DA, not at their decision not to indict. If the investigation was simply too premature to truly move forward productively in 1998, there’s no reason why the DA’s office couldn’t have waited. (Yes, this would have pissed off the BPD & the media – but it’s the DAs job not to capitulate to that pressure & to preserve the best quality, most strategic case possible.)

Here’s where things get really get off-the-typical-GJ-course.

[POINT B] Remember how I said a GJ is a one-sided, non-adversarial, prosecution-only, ham-sandwich-indicting procedure?
That wasn’t the case for the JBR GJ. In late 1998, L. Smit, who had that point resigned from his consulting position with the DAs office, was informed he wouldn’t be subpoenaed to testify before the GJ.

Smit reponded by writing a letter to GJ (or the Court, not sure which), basically pleading to present his Powerpoint on the intruder theory to the GJ. A. Hunter replied on behalf of the GJ, denying Smit’s request, and then the DA’s office went even further, seeking a court order to bar Smit’s testimony (even if the GJ requested it). (Motions like these are handled by the otherwise-absent-from-the-GJ-process judge.)

Long story short, Smit was permitted to testify to the GJ & to present the intruder theory. The substance of his testimony is and remains (of course) under seal, but we can glean that he wasn’t simply allowed to present his testimony without commentary. Smit petitioned the court for a second opportunity to testify, essentially revealing that the DA cross-examined Smit viciously during his first round of testifying.

[ASSUMPTION ALERT: This lends credence to my belief that the DA wasn’t just playing along with BPD, but was in fact really on board with RDI during the GJ process.]

Okay, so what do we take from this information? The JBR GJ – unlike most GJs – was not presented with the typical GJ structure of simply going merrily along with the DAs theory of the case. The GJ jurors were presented with a thorough presentation (though cross-examined presentation) on the intruder theory. (By the way, for those wondering, presumably this would have included the 1998 DNA profile.)

[ASSUMPTION ALERT:] We’ll talk about Burke soon, but I believe Smit’s presentation (whether you buy IDI or not) – and not a Burke infancy defense – is more likely to be the primary cause of the true bills issued by the GJ here.

(By the way, unlike at the criminal trial itself, the GJ jurors don’t need a unanimous vote to true bill charges at the GJ stage. If they had a majority voting RDI on the murder charges, the true bill on those charges could have moved forward from there.)

[PART 7]


Before we get into Burke, which is the stickiest & most assumption-ridden portion of this analysis, I want to talk a little bit about defenses, and in particular, defenses at the GJ stage.

I’m oversimplifying the background here a bit, but there’s basically two types of defenses we all need to understand here: (a) factual defenses, and (b) legal defenses.

Factual defenses are exactly what they sound like: Defenses based on the facts of the case. Here, the intruder theory; attacks on botched police procedure; competing expert testimony – all of these are factual defenses. You’d almost never see one of these at the GJ proceeding. Smit’s presentation of the intruder theory to the JBR GJ was exceedingly rare.

Legal defenses are a bit more difficult to explain, but they basically boil down to this: The defendant either admits or continues to contest that they committed the crime in question, but the defendant also asserts that there was a legal justification for doing what they did that renders them not guilty of the crime as a matter of law. Almost all legal defenses are “affirmative defenses,” which means it is the defense’s obligation to raise the defense at the earliest available point in the case. If the defendant fails to raise an affirmative defense, it’s waived forever.

Classic examples of legal defenses: self-defense, insanity, justification (essentially protecting the life of another or fulfilling a duty to protect others – like a police officer). Intoxication is another legal defense, but has largely fallen out of favor. Burke’s infancy defense is a legal, affirmative defense as well.

Once again, however, as I’ve mentioned, whether the defendant intends to raise factual defenses or legal defenses, the GJ is almost never going to hear those defenses before voting to indict, because the target & the target’s attorneys aren’t at the GJ, and the prosecutor has no incentive to present the defense's case for him.

That being said, are there any exceptions where we know a legal defense was offered to a GJ, by the prosecutor? Actually yes, we’ve had a couple of high-profile examples of this recently. Once again, we’re diverting because I think it’s helpful to understanding the BDI theory here:

In 2014, Darren Wilson – a white police officer in Ferguson, MO – shot an unarmed black civilian, Michael Brown. The prosecutor elected to convene a GJ, and quite unusually, announced from the outset that he would not simply provide the GJ with a one-sided murder case. Instead, he would allow a “full presentation” of the evidence to the GJ, including Wilson’s legal affirmative defense that it was a “justified shooting.” If the GJ voted not to indict, the prosecutor announced he would move to unseal the GJ transcripts immediately. In fact, that is what happened. The GJ did not vote to indict, Wilson was never charged, and the GJ transcripts were released soon thereafter. This decision by the prosecutor was controversial: Many said that, by allowing Wilson’s defense before the GJ, the prosecutor was showing leniency to Wilson and allowing him to potentially avoid a full trial. They also argued that the prosecutor was not vigorously going after Brown’s murderer like a prosecutor would in a normal case. On the other hand, others said that skipping the kangaroo court GJ process was more transparent to an upset public, and would speed up the healing process. Many people argued that, whatever the outcome, the prosecutor used the GJ as a means to thread the needle on bad political exposure (either of failing to indict a racist cop, or for indicting an innocent cop). More than one of these officer shootings have had GJs go down like this, but again, notice how extreme and unusual the circumstances are here.

By contrast, did the prosecutor assert the planned parenthood or aurora shooter's insanity defenses to the GJ? Not a chance, and they never would. Because that's normal procedure for GJs.

Hopefully this background provides some additional context: Bottom line, we know that the GJ heard a factual, intruder defense from L. Smit (and that this was very unusual GJ procedure). We also know it’s possible, but highly unlikely, for a prosecutor to present a legal defense on the target’s behalf (a la the Wilson case).

This, finally and at long last, brings us to the last bit- the CBS presentation’s theory – Did the DA present Burke’s legal defense to the GJ? Is that the explanation for the GJ’s true bill?


We’ve made it to the end of the line. Here, folks, is where we have the least legal precedent & the least information; thus, by necessity, the most assumptions. But I’m confident we can at least muddle our way through with a bit of rationalization as best we can. Here’s what we know:

John & Patsy were not subpoenaed to the GJ. [ASSUMPTION ALERT]: That’s because they were the primary targets.

Burke was subpoenaed to the GJ, on May 19, 1999. Unnamed “Boulder authorities” announce the next day that Burke testified as a “witness” not a “suspect.” http://extras.denverpost.com/news/jon0526.htm

Oct. 1999: GJ disbands, AH announces "We do not have sufficient evidence to warrant the filing of charges against anyone who has been investigated at this time.”

Oct. 2013: After an information act lawsuit, a Court orders the release of 4 pages of the GJ report, which indicate that the GJ true billed John & Patsy on two counts apiece:

IV(a): Child Abuse (Resulting in Death) (C.R.S. 18-6-401)
VII: Accessory to a Crime [after the fact] (C.R.S. 18-8-105)

[NB: Colorado's statutes are available to the public free at this link, if you feel like nerding out. http://www.lexisnexis.com/hottopics/Colorado/]

But before we talk about the charges themselves, we should talk about how charges were numbered. [MINOR ASSUMPTION ALERT:] Generally, charges go from most serious to least serious. (It's a domino effect theory - if I can convince you the defendant did the most bad thing, then you're more likely to convict on the next bad thing, and so on.)

So we can safely assume that the prosecutor presented the GJ with at least 3 charges against the Ramseys that were more serious offenses than IV(a). These were likely murder or manslaughter (and possibly kidnapping) in their various degrees. The subsection (a) indicates to me that the GJ was probably also presented with 1 or more lesser degree offenses under the "Offenses Involving the Family Relations" Article, but the GJ didn’t true bill those. The GJ was also possibly presented with some complicity and accessory charges numbered V & VI, but the GJ also didn’t true bill those.

With that in place, my interpretation is that this true bill is a real mess. The GJ was kinda jumping all over the place here. But at least we know the GJ indicted the Ramseys for child abuse resulting in death, and for obstructing justice after the fact.

However, nothing about these charges indicates from the GJ who they believed actually killed JBR, or even who abused her. The child abuse wording is only an excerpt of the statutory language (at least as is stands today), which can apply to direct abusers as well as those who “placed a child in a situation which posed a threat of injury to the child’s life or health.” The true bills, however, only mention the “placed in a situation” language. The accessory after the fact language is also incredibly nebulous. This is usually one of those "easy win" kind of charges that you stick in to bolster the punishment range, or it's someone who was entirely uninvolved in the crime itself and this is the only thing you can get them with. A remarkable amount of conduct can be punished under a statute like this, and impossible for us to know what conduct the GJ thought fit this charge.

We also have a true bill on our hands that does not charge anyone with JBR’s murder, and no one with abusing her either. If I’m the prosecutor, this is a disaster. Unless the GJ report identifies that primary person, I’m going to have a really hard time going in front of a judge, and affirming there’s probable cause on these lesser offenses, while having nothing to charge against the primary offender. It also presents a problem if you're going to take these charges to trial - you're going to need to present a primary offender. If the GJ report reflected any waffling or uncertainty on the jurors' part, then getting a judge to sign off on PC is going to be very difficult. And of course, it tends to indicate that the prosecution took its best shot at an empty net on murder charges, and missed wide by a mile.

[ASSUMPTION ALERT]: So what do I see here? Four possibilities:

GJ couldn’t decide whether PR or JR, or both, committed the primary offense.

At least some of the GJ bought into intruder theory enough that they weren’t willing to indict the parents on the primary offenses, but enough people thought the Ramseys did something wrong, including potential past abuse & being noncooperative with police, to justify the true billed offenses. This smacks of a classic “compromise” verdict.

CBS Theory: GJ decided BDI was the primary offender, and parents were aware of his danger to JBR, did nothing about it (but did not necessarily know about this incident before the fact), and then helped cover up for BR after the fact.

The GJ was utterly confused.

The only place where you’re going to possibly have any insight into which of these possibilities we’re talking about is the GJ Report. (They are required to submit a GJ Report when they no true bill.) That has not been released, and as long as this case remains open, will not be released. See above – taints ongoing investigation & unfairly submits non-indicted targets to public scrutiny. Out of these 4 possibilities, and knowing what we know about what was presented to the GJ, I strongly suspect what happened here is a combination of 2 & 4.

Why do exclude Option 1?

Remember the legal standard for a GJ is only probable cause, i.e., reasonable grounds to charge. It’s not proof beyond a reasonable doubt. The GJ didn’t need to decide which one did it. There’s no reason why the GJ couldn’t just indict both of them and let the jury sort that out at trial. Similarly, even if the GJ report reflects that, a prosecutor could make an argument for PC sufficient to get past the preliminary hearing. (A nightmare of a case for the prosecution, but that’s not the GJ’s problem.)

Why do I favor Options 2 & 4?

Because jury deliberations are secret in this country, we lack solid, data-based analysis of how they operate. But anecdotal evidence suggests that compromise verdicts are incredibly common with split juries, especially split juries who are bitterly divided and have been empaneled for extended periods of time. The risks for incongruous verdicts goes up the more charges that are filed. Jury instructions are often ridiculously complicated, super boring, and come at the tail end of the process. Bad combo.

We know that the GJ here heard both theories, and just look at this board for proof about how entrenched people get in their views. It’s entirely believable that the best they could come up with was “the Ramseys were acting badly,” and thus came to a compromise to end the 18-month ordeal. Note that, especially with charge IV(a), the jury used the most nebulous statutory language available. This literally could encompass, RDI, BDI, or even IDI (if you have people that believe JBR was sexually abused and put at risk by participating in pageant culture). This type of compromise thinking often leads to confused, incongruous verdicts that simply cannot be supported under the elements of the law.

In fact, there’s a whole school of trial attorneys who believe strongly that charges should be wheedled down to the most important offenses only (instead of tossing in every possible lesser-included offense), precisely because of this risk.

Bottom line, I could find you 20 cases in 10 minutes where trial verdicts were reversed on appeal because the jury convicted on counts that can't simultaneously be supported under the facts. You just don’t normally see this at the GJ stage, you see it at the trial stage.

Finally, why do I tend to discount Option 3?

Well, first off – Burke was called to GJ, indicating strongly that he wasn’t being presented as a target. If his attorneys even caught a whiff of criminal liability, he’d taken the Fifth (and for all we know, he did), but again, this would be odd. Even with a complete infancy defense, you'd want to do this if you were the primary offender and you thought your GJ testimony could be used against you or your parents at the parents' trial.

[NB: If Burke invoked the 5th at the GJ, and the prosecution was aware of an infancy defense, they could have fought this. It would be extensive, and super interesting, motions practice.]

Finally, buttressing my disinclination for Option 3 is the public statement that Burke was questioned as a witness, not a suspect. Although the court isn’t in the room monitoring the GJ proceedings closely, if there was any hint that the DAs office was quite literally simultaneously targeting him while also announcing that he wasn’t a suspect, this would create huge ethical problems. We’re talking potentially bar-license-losing problems. It’s one thing to leak random “facts” during the investigation (whether for political or strategic reasons), but it’s a whole other to taint the GJ process. This would not be taken lightly, and I really don't see anyone taking that risk.

Finally, there are pretty strict limitations on what the prosecutor can reveal – even to LE – about the GJ proceedings. Kolar, et al. very likely do not have much more of a sense of what was presented to the GJ than you are I do. Sure, Kolar knows what he testified to (if he even testified at GJ), but that would be it.


Finally, let’s look at the language of the Infancy Statute at issue here with Burke. Infancy statutes are sort of relics in the law, but suffice to say the theory is that a person under X age is so young that they can’t form mens rea (intent) to commit the crime.

Virtually all states have these in one form of another ranging often from about 7 to 14 yrs old. The federal infancy statute is, I believe, 11.

With respect to this case, applying the infancy statute to the GJ process gets pretty complicated, so bear with me.

The pertinent part of Colorado’s infancy statute (18-1-801) reads as follows:

No child under ten years of age shall be found guilty of any offense.

Based on a plain reading of that statute, there’s nothing in there that says an infant can’t be investigated or even charged with an offense.

There are precious few cases that interpret this statute, but at least one Colorado court has said somewhat differently:

“Although a child under the age of 10 cannot be charged with an offense, it does not necessarily follow that the child cannot violate the law. In enacting the statute, the general assembly determined those persons who could be held responsible for their criminal acts, not that such persons could not commit the acts. People v. Miller, 830 P.2d 1092, (Colo. App. 1991).

This is kind of sloppy writing, because it doesn’t track the statute, but it’s not necessarily wrong. There’s basically 2 ways to interpret this:

Yes, you can charge an infant, but you can’t convict them. (plain language, statutory reading)

No, you can’t really charge an infant, because you can’t convict them. (Miller, jurisdictional reading).

Despite veering a bit from the plain language, reading 2 actually makes a little bit of sense. In order for a Court to find probable cause on an indictment or information, the Court has to find that is has jurisdiction to hear the case.

In simple terms, if the Court can’t provide a remedy, the Court has no jurisdiction. The argument here would be that if the Court can’t convict the defendant or impose any punishment, they can’t really resolve the case, thus they really don’t have jurisdiction.

Under this reading, infancy is a true and “complete” defense to prosecution of any kind. This is basically what CBS argued, but again, note that there’s a pretty defensible alternative reading that you could charge an infant and resolve the underlying facts, at least to some degree, if they were disputed.Note also that Burke's guilt would have to be addressed in order to adjudicate John & Patsy's case, under a BDI theory.

(Also, contrast the infancy defense to defenses such as self-defense or insanity. The jury can reject those defenses and convict in spite of them, so there’s no potential "complete" or "jurisdictional" bar there.)

I actually looked at Colo.’s Jury Instructions to see if they provided any insight. Laughably, they basically just contain a comment that this issue pretty much never comes up. They do indicate, however, that you would use this instruction primarily if there was some dispute about what age the offender was at the time of the crime. (Not at issue here.)

Regardless, whether or not the prosecution could actually charge Burke, the CBS analyst made a huge leap in assuming that meant there was no legal action available.

I looked into other jurisdictions’ commentary, and here’s what it suggests. Let’s say the prosecutor did present BDI at the GJ. GJ comes back with true bills that fit exactly what so many BDI’ers believe: parents knew Burke was dangerous and perhaps a sexual abuser, ignored it (Dugger style), she ends up dead at his hands, and then they cover it up. Thus, putting child in a situation of abuse ending in death, and accessories after the fact.

Does this automatically mean that the prosecutor couldn’t charge the Ramseys & Burke skips off to the sunset?

No, not at all.

Look, if that really was the the prosecution’s theory, then A. Hunter got exactly the true bills he’d need to move forward with a BDI theory. He would have charged the Ramseys on the true bills, moved forward in a sealed or semi-sealed proceeding that blocks out Burke’s info from the Ramseys trial (but basically doesn’t really protect his ID, because at that point, it’s almost impossible to do). Burke’s privacy rights simply don’t automatically insulate the Ramseys from prosecution.

Then, to take it to the next step, if the DAs office believes Burke is either dangerous or even prone to random, basically accidental fits of violence, the DA and the Court would then have a few options to recommend through the family court system. Colorado’s neglect of a child statute is pretty broad. The DA or Court, in conjunction with family court prosecutors, could pursue a case that the Ramseys neglected Burke’s mental health needs. The family court has a whole slew of means to ensure that Burke would receive proper family and mental health support to address his issues going forward. The appointment of a guardian ad litem would be the first logical step. In cases where, for instance, you have a toddler who completely accidentally shoots another toddler, this kind of thing has been done – just to ensure that the kid & his family has some professional help dealing with the fallout of such an event.

If the GJ was really presented with BDI, and they believed BDI, and the true bills are a proper reflection of that theory of the case, that simply wouldn’t be the end of the story. As even the Miller court pointed out, the fact that a person can’t be held criminally responsible for act, doesn’t mean it didn’t occur, and it doesn’t necessarily mean there’s literally nothing that could be done on a court’s part to intervene.

Finally, and as the last flourish to this novella, I’ll remind you that the prosecutor doesn’t need to present an affirmative defense on a target’s behalf at GJ. In fact, it would be unusual to do so, and it’s probably wildly speculative to assume that's what happened and build a whole interpretation of the GJ vote off of that assumption.

The other alternative for the prosecutor here, interpreting the statute by its plain language, would be to just conveniently omit Burke’s age & the existence of a potential infancy defense at the GJ proceedings. (This is, after all, an affirmative defense and the prosecutor’s under no obligation to present it to the GJ.) Just get an indictment on Burke for the primary offenses, and then let the defense argue at the preliminary hearing that no probable cause could issue on an infant, and let the Court handle dismissing the charges against him. Under this option, the DAs office can still say they brought all available charges, and close the case accordingly.

I appreciate anyone that read all of this, and I hope you can understand why the well-meaning, but I believe ultimately misguided, GJ interpretations drove me nuts enough to post this absurdly detailed message. If nothing else, I hope you learned a little bit about our criminal justice system! Yay America.

Also, I know there are some pending questions not addressed by this diatribe, and I’ll try to get to them tomorrow or later this week. Got some actual work to do tomorrow.

[EDIT: A poster pointed out that I originally misquoted the statute. It's 18-1-801, not 18-1-101. Typo, sorry about that.]
(08-07-2017, 12:01 PM)jameson245 Wrote: If the GJ was really presented with BDI, and they believed BDI, and the true bills are a proper reflection of that theory of the case, that simply wouldn’t be the end of the story. 
The GJ was a POLITICAL ploy desired by the Governor and the BPD.
The DA was never PRO=RAMSEY, teh DA simply didn't want to be embarrassed by letting the BPD lock up the parents and having their lawyers let them out by the next commercial break. 
However, if the DA was not willing to prosecute the parents for allowing JonBenet to be in beauty pageants then the 'no true bill of indictment' was the correct announcement to make.

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