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It was just three years ago that the U.S. Justice Department abruptly ended the grand jury investigation of Indiana dairy farmer David Hochstetler, the day before he was due to testify. Under grand jury rules, he wouldn’t have been allowed to have a lawyer present, nor would he have been able to cross-examine any witnesses against him. The entire proceeding would have significantly favored the prosecutor (though the requirement that grand juries provide indictments on a “capital or infamous…. crime” is part of the U.S. Constitution’s Fifth Amendment designed to protect rights by placing the decision in the hands of ordinary citizens). 

 

I have long wondered how it was that objections from an obscure Indiana county sheriff could have caused the mighty U.S. government to back off from a legal process that was likely headed toward the filing of serious criminal charges against Hochstetler in connection with campylobacter illnesses linked to, but never fully connected with, the raw milk producer. The charges were likely the brainchild of the U.S. Food and Drug Administration, designed to cast a pall on the fast-growing private market for raw milk.

 

Finally, clarity has come, oddly enough, in the failure in just the last couple weeks of two grand juries, in Missouri and New York, to indict police officers in connection with the killing of unarmed black men. 

 

How was it that two different local grand juries could fully clear the cops involved—not even indict on some kind of manslaughter charge— even when one of the killings was video recorded for all the world to see that the unarmed victim was choked to death? 

 

CBS News had an intriguing assessment of the grand jury system, including an interview with a legal expert from the Cato Institute who said, “If prosecutors want an indictment, they will get an indictment. If they don’t want one, it won’t happen.”  

 

Why wouldn’t they want indictments in either the Missouri or New York cases? Because the prosecutors didn’t want to alienate the police, whom “they work with day in and day out,” according to the Cato Institute expert. What he was saying is that the police are often witnesses who testify against accused robbers, murderers, and rapists. The cops’ cooperation is often essential to getting convictions. Few prosecutors are going to do anything so significant as getting police officers indicted on serious criminal charges, and risk alienating all their colleagues, so much so that they might suddenly have amnesia or be unavailable to help put other bad guys away. Maybe more threatening to prosecutors, uncooperative police can wreck the track records of ambitious prosecutors, making re-election or advancement to another elective office difficult. 

 

And that, I realize, is likely why the U.S. Justice Department backed off in going after David Hochstetler three years ago. Its prosecutors not only didn’t want to tangle with Rogers, but also didn’t want to tangle with other sheriffs who likely would have become alienated if the government was not only steamrollering Hochstetler, but ignoring Rogers….especially if the law enforcement officer was continuing to complain publicly about violations of Hochstetler’s rights to supply food privately to eager buyers. Just cut the whole affair off and make it go away was the Justice Department’s wise appraisal; as it was, the sheriff, Brad Rogers, received an award from a sheriff’s group for “Meritorious Valor” for standing up to the Justice Department. 

 

I should add that the issue of grand juries is apart from the racial issue around the Fergusion and Staten Island cases. Unfortunately, the two issues get tangled up. White police often have a racial problem with non-whites they are supposed to be protecting. But I don’t believe the prosecutors in Ferguson or Staten Island were racially motivated in seeing to it the cops got away with possibly serious crimes. I think the prosecutors were motivated by narrow professional self interest. While such narrow professional self interest may have rescued an Indiana dairy farmer, it doomed prosecution of two highly questionable cops. The legal system can be very unfair.