04/24/2012 05:05 pm ET Updated Jun 24, 2012

Charging George Zimmerman: Why Bypass the Grand Jury?

George Zimmerman -- who, no one disputes, killed Trayvon Martin in Sanford, Fla. -- has now been formally charged with second degree murder in a hearsay affidavit filed by special prosecutor Angela Corey. But there is a huge question whether Zimmerman actually murdered Trayvon, or rather committed some lesser degree of homicide like manslaughter or, indeed, no crime at all. And unless Zimmerman pleads guilty, the affidavit by itself, summarizing the investigation by the special prosecutor, will force him to stand trial without a grand jury having heard any evidence and returned an indictment, but simply on a hearsay statement from two investigators who summarized their version of the evidence. The prosecutor will have been a one person -- and hardly neutral -- grand jury!

How can that be? Wasn't a grand jury established as far back as 1166 under King Henry II as a check on the power of the Church and the feudal barons and a shield against oppressive prosecutions, and then in 1215 through the Magna Carta as a shield against the power of the King? Indeed, the grand jury's role has always served as a buffer to protect an individual from prosecution except by "the lawful judgment of his peers" -- an explicit requirement under the Fifth Amendment to the U.S. Constitution. If that is so, how can Zimmerman be charged without a grand jury? The answer is straightforward. In 1884, in Hurtado v. California, the Supreme Court specifically ruled that the U.S. Constitution does not require states to use grand juries to formally charge crimes, only the federal government.

Sure, states can require a grand jury indictment, as most do. But not Florida, unless the charge is murder in the first degree - premeditated murder -- a "capital" crime with which Zimmerman was not charged. That's why Florida used the grand jury to charge Casey Anthony with capital murder. Still, under Florida law, Corey could have asked a grand jury to consider the evidence in the case and return an indictment. But she didn't. Why?

One plausible reason might be contained in the Florida Grand Jury handbook, distributed to grand jurors when they are empanelled. It states:

Except for capital crimes, the state attorney (or statewide prosecutor) may initiate all other charges. The grand jury of course may indict for any crime that the evidence justifies.

The wisdom of leaving to the state attorney (or the statewide prosecutor) the bringing of charges as to crimes less than capital crimes and traffic violations is readily apparent. If the grand jury was required to initiate the prosecution of less serious crimes through indictment, the grand jury would be so overwhelmed with complaints that it could not perform its more important duties.

This is curious. Many states, e.g., New York, require that grand juries must indict on felony charges absent a waiver by the defendant, which occurs infrequently. The New York grand jury system seems to be working effectively. The Florida handbook, however, essentially explains the state's desire to save the grand jury system from needless time and expense in having run of the mill offenses presented to a grand jury. But a charge of murder in the second degree is hardly a "run-of-the-mill" offense, especially given that a conviction could bring a life sentence for the accused.

Still, Corey could have presented the case to the grand jury, but she didn't. We asked a prominent Florida criminal defense attorney and past chair of the American Bar Association's Criminal Justice Section, Bruce M. Lyons, his take on the matter. Is it conceivable Corey was concerned that the grand jury might become a so-called "runaway jury" -- namely, a jury that was so offended by Zimmerman's conduct that it might have insisted on indicting him for first degree murder, which requires the element of premeditation, which Corey apparently believed she couldn't sustain at a trial. Or, perhaps more likely, Corey may have been concerned that the local grand jury in Seminole County may have been composed of pro-Zimmerman (or "Stand Your Ground") partisans who might have voted not to indict at all, believing that the episode was ratcheted up to a fever pitch by outside "agitators" and "race baiters." The grand jurors may have believed that there was no racial bias on Zimmerman's part, and that his motivations had nothing at all to do with race; that he was motivated only to protect himself. Strangely, and notably, Corey's affidavit described a "struggle" between Zimmerman and Martin, but there was no other reference to self-defense and the controversial "stand your ground" claim that Zimmerman apparently had argued to the police was the basis for his killing Martin.

Or, was Corey concerned that the murder case was weak and difficult to prove beyond a reasonable doubt, so that she wanted to avoid key witnesses giving one version of their recollections under oath at the grand jury, and somewhat different versions at trial, thereby subjecting them to impeachment by a skilled defense attorney? Of course, these witnesses will have to testify under oath soon, given Florida's unusual requirement in criminal cases that witnesses for the prosecution may be deposed by defense counsel prior to trial. Or, perhaps, Corey wanted to avoid a later, baseless, claim that her presentation of the evidence was skewed, and that she didn't put exculpatory evidence before the grand jury before it voted to indict.

Another possible clue to Corey's decision may have emerged at Zimmerman's bail hearing last week when his attorney asked a key investigator directly involved in the case whether he knew who started the fight, and whether he had any evidence to contradict the fact Martin punched Zimmerman first, and banged his head on the concrete? To both questions the investigator answered "No."

To be clear, a prosecutor's choice to avoid using a grand jury for any one of these reasons conceivably could be viewed as an action of a "prudent" prosecutor, especially when the Florida statute clearly affords her that escape hatch. After all, most prosecutors, if they are candid, would concede that, because they ultimately have to try the case (for which they believe the defendant is guilty), calling the shots themselves, even before trial, would be the best way to secure a conviction without risking pre-trial mistakes.

Nevertheless, is circumventing the grand jury the right course to take? This case has become a hugely controversial event, rivaling the kind of racial firestorm that blanketed the country during the O.J. Simpson case. Still, the prosecutor has chosen in a controversial case of such magnitude -- even the president has spoken about this case -- to use Florida's escape hatch, thereby foregoing a procedure designed by the Magna Carta to protect a defendant from unwarranted accusations. We do not suggest that George Zimmerman deserves more justice than "the next guy" in Florida who also likely won't be indicted by a grand jury; we are merely wondering why a procedure so ingrained in our law and culture as a protection of an accused -- any accused -- can be so easily bypassed.

This case, however, rightly or wrongly, is being scrutinized throughout the country, maybe the world, to determine precisely how our justice system works, particularly in an inflammatory setting, when a defendant in a cross-racial shooting plans to defend himself using a statute as controversial as the "Stand Your Ground" law. If a prosecutor declines to present this type of case to a grand jury so that the grand jury might, as the handbook articulates it, perform its "important duties," what exactly are those important duties except to provide a measure of protection between an accused and the government?