The JonBenet Ramsey murder case calls to mind the old legal saw that any prosecutor worth his salt can get a grand jury to indict a ham sandwich.
Maybe in routine cases prosecutors can and will persuade grand juries to indict suspects who don't satisfy the probable-cause standard, but the Ramsey case is anything but routine.JonBenet's parents are under an umbrella of suspicion in regard to their daughter's death, but they are also rich and powerful people, and the case itself has triggered a media frenzy reminiscent of the O.J. Simpson trial.
In this context, it's quite understandable why a prosecutor -- fearing an acquittal in a high-profile murder trial -- would hesitate to indict anyone unless confident there was enough evidence to convince a jury beyond a reasonable doubt of the defendant's guilt.
Prosecutors may seek indictments of routine defendants in cases where the evidence is inconclusive, but they don't usually do so in murder cases that capture the nation's attention -- at least not when the potential defendants are wealthy and prominent. Perhaps they could, but they generally don't.
Variations in how prosecutors exercise discretion in seeking indictments is not the only difference between exceptional and routine murder cases. There is also the death penalty. Prosecutors rarely, if ever, seek the death penalty if the defendant is rich, powerful and/or famous. For example, even though Simpson was suspected of killing two people -- potentially making him a death penalty defendant under California law -- the Los Angeles district attorney's office chose not to seek the death penalty.
The reason is quite simple. Most Americans, including those who find themselves on juries in homicide cases, don't favor sentencing the rich and famous to die. Capital punishment is reserved generally for poor and anonymous homicide defendants who can't afford an attorney, those whose only claim to fame is derived from the vicious circumstances of their crimes. For example, most of us know that defendants in the dragging death in Texas got death sentences, but how many of us remember their names?
Perhaps a good rule of thumb is that a defendant in a capital case doesn't really have to worry much about the death penalty if he is wealthy enough to be able to afford his own personal attorney.
Moreover, although murder cases that are high profile often culminate with a bang -- that is, a full-blown jury trial and verdict -- routine cases often end with the whimper of a plea bargain. The prosecutor gets an easy conviction, and the defendant gets a reduced conviction or sentence.
It is in this context that the death penalty perhaps plays its most important role in our criminal-justice system. It is an extremely effective means to persuade homicide defendants to give up their right to raise possible defenses to a jury and accept for their crimes a life sentence or a long prison term.
What could be better? The murderer is put away for a long time and the public is saved the expense of a trial. But, because there is no trial in the plea-bargained homicide cases, there is also no authoritative finding of facts by a jury or a judge. The defendant usually admits he did the crime, but that is part of the price of the deal.
Accordingly, in any particular plea-bargained homicide case, the public has little assurance that all relevant facts concerning the homicide are known or that the resulting punishment fits the crime and culpability of the murderer. The prosecutor and defense attorney may know more about the specifics of the case, but they too could be misled because our adversarial system of plea bargaining consists of each side trying to out-bluff and out-spin the other.
It is not a system designed to determine the level of a criminal's culpability but to dispose of cases quickly and inexpensively.
If there were an indictment in the JonBenet Ramsey case, we would likely see American ideals of criminal justice in operation in a high-profile murder trial. But, in routine murder cases, these same ideals often hide or mask the reality of plea bargaining. Perhaps, in the end, it is all to be expected. A society always on the go, adept at marketing and fond of fast food and sports has found a way to feel morally good about itself as it quickly and cheaply disposes of homicide cases through an adversarial process of plea bargaining.
The challenge confronting those who are morally uncomfortable with this system is to formulate reforms that take into account both our ideals and the practical realities, bending and adjusting each to the other. Perhaps one reform would be to abolish plea bargaining in death-penalty cases -- as some states do. The death penalty may be justifiable, but not if its primary institutional purpose is to give prosecutors additional leverage over homicide defendants.
Pohlman is professor of political science at Dickinson College in Carlisle, Pa.
Los Angeles Times-Washington Post News Service