A Fact-Check for the Four-Color World

Sunday, January 14, 2007

Manhunter #27: Wonder Woman's Grand Jury

Long story short: In order to save the world, Wonder Woman killed Maxwell Lord. Now the U.S. government is pursuing charges against her for murdering a federal officer.


So we've established that it's reasonable for the U.S. courts to have jurisdiction over Wonder Woman and her killing of Max Lord. And that while it may seem bizarre for the U.S. gov't to publicize that it had a mind-controlling psycho supervillain in its employ, it's plausible enough if 1) the public doesn't know Max was a supervillain, and 2) the videotape doesn't reveal it was a defensive killing. Of course, this only works up until the point Superman publicly states that Max was a mind-controlling supervillain and that Diana killed him to save the world. Once that happens, they'd be best off to just blame the whole thing on former President psycho-pseudo-clone Luthor.

The government's first step in pursuing charges, then, would be to indict Diana for murder by presenting the case against her before a grand jury. The Fifth Amendment to the U.S. Constitution begins: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..." Grand juries meet to hear evidence from a prosecutor, and they decide whether to issue formal charges against a person. This requirement isn't binding on the states (as several other Amendments are), but it means that a grand jury indictment is basically necessary for any federal felony charge. So this is a necessary step for the government to undertake before Wonder Woman can be tried for murder.

One thing the issue captures correctly are the comments in Kate's speech about how skewed grand jury presentations are. When a grand jury hears evidence, it only hears from the prosecutor. The defense isn't even in the room. So in determining whether probable cause exists to issue an indictment, the grand jury isn't able to consider any of the defense's evidence.

Another aspect of the grand jury process captured correctly is the repeated assertion that what happens in a grand jury hearing is confidential. The prosecutor and the grand jurors are prohibited by law from discussing what happens in the grand jury room. Witnesses, on the other hand, are under no such prohibition, and can discuss their experience with anyone.

Even though it's Kate that invokes this rule, the defendant and the defense attorney aren't supposed to be in the grand jury to start with, like I said above. A grand jury hearing is a forum only for the prosecutor to present the state's case, and for the grand jurors to ask questions in return. There is no role for the defense, and unless the defendant himself (or herself) is called as a witness to testify, then the defendant can't be present. In fact, at this stage, the defense doesn't really have a role to play at all.*

This does get acknowledged somewhat in the issue, when the judge tells Kate that she's made a special exception for Kate and Diana to be present. But I'm not aware of any rules that allow such an exception to be made, so that's still a pretty big cheat. (If that is possible, I'd be happy to be corrected.)

In any case, that still doesn't explain why the judge herself is present, because judges aren't present during grand jury hearings either. The prosecutor is the one in charge. And grand jury hearings take place in the grand jury room, not in a courtroom.

Grand juries are also larger than trial juries. They can have as many as 23 people, but every meeting of the grand jury is required by law to have at least 16 members present to conduct business. Javier Pina draws a consistent group of grand jurors, but they appear to total only a dozen in number, the size of a typical trial jury.

In short, even though we're told this is a grand jury proceeding, it still has almost all the appearances of a regular trial. The courtroom setting, the presiding judge, the presence of adversarial parties, and a 12-person jury in a jury box. These are all standard aspects of a courtroom trial, none of which are part of a grand jury hearing. All it's missing is an audience in the courtroom. Aside from a couple of nods in the dialogue to the general rules of a grand jury ("You cannot object in a grand jury proceeding"; "You know those proceedings are sealed;" the power of the prosecutor), the scenes don't bear much resemblance at all to an actual grand jury.


* Careful readers may notice that this could be seen as being at odds with what I said about Diana potentially waiving her diplomatic immunity. If she shouldn't be part of the process at this stage, how could she waive any immunities? The simple answer is: she can't. At least, not in any way that would be binding after the grand jury indicts her. But if the issues are going to portray her as cooperating with prosecutors, then I'll assume that she's not claiming any immunities until she says differently. And at that time I can reiterate why I think such a claim isn't any good anyway.