In New York, there has been an expression among prosecutors that a grand jury would indict a ham sandwich. As silly as that sounds in light of the serious nature of an indictment, the expression itself is an indictment of the grand jury system.
The phrase apparently was coined by Chief Judge Sol Wachtler of the New York Court of Appeals, who had a winning personality and was good at a “turn of a phrase.” He came up with the idea that a grand jury would indict anything, including a ham sandwich.
This remark is rather demeaning to the Grand Jury system and the citizens who are on grand jury panels. What Judge Wachtler was trying to express is that the Grand Jury system involves a presentation to the grand jury of the facts of the crime but only by the prosecution. The person being charged is not allowed to have his lawyer attend the grand jury proceedings. Consequently, the grand jury of the person being presented for indictment does not hear anything from a lawyer for the accused. What this means is that the Grand Jury is presented with “evidence” to find “probable cause” that is so one-sided that the Grand Jury is highly unlikely not to vote a “true bill,” which is the phrase used for the indictment.
This may seem rather unfair, and Judge Wachtler’s expression that a grand jury would indict a ham sandwich, is intended to make that point. It makes it like the grand jury has no common sense and will just indict anyone if the prosecution presents an understandable claim that that person committed a crime. This is as unfair to Grand Juries and the Prosecutor’s as it is to ham Sandwiches. It is the process of a one-sided presentation and not the Grand Jury which creates apparent unfairness.
Recently, the issue of the grand jury’s ability to act based on the evidence presented by the prosecution came into focus in a different way. When the President decided to send United States officers into the District of Columbia to assist in policing, many citizens were offended and upset by the decision. One individual, who otherwise seemed like a normal person, was very agitated and took a sandwich and threw it at a federal officer, hitting him. The reports are that it was a submarine sandwich, which was probably easier to use as a projectile than a ham sandwich. But whatever it was, what he threw was something that we eat.
The grand jury did not indict the man for throwing the sandwich. Obviously, it also did not indict the sandwich itself, unlike the grand juries envisioned by Judge Wachtler in New York. The reason is apparently that the jury did not believe that the man committed a felony when he threw the sandwich at a federal officer.
Certainly, throwing an object at a person who is a law enforcement officer should be some kind of crime. Certainly, it could be a misdemeanor, which does not require a grand jury. But does it rise to the level of a crime for which a grand jury should indict and find the defendant may have committed a felony? The answer is that this grand jury of the peers of the accused did not believe throwing the sandwich was an indictable offense. This cuts against the comment by Judge Wachtler that a grand jury would indict a ham sandwich.
In his illustration, the ham sandwich clearly did nothing. Here, the individual charged did, in fact, throw a sandwich at a federal officer and strike him with that sandwich. What this shows is that the grand jury system, composed of peers, American citizens from the local community, may not indict a person for what the grand jury saw as a political protest. The Grand Jury, like the accused, did not like the President’s decision to send federal officers into the District of Columbia and have them walk about the streets and charge normal citizens with minor crimes that might otherwise not be charged by local police.
Depending on your politics, you may think that this is a good thing that the grand jury did not indict, or you might think the grand jury is not following the law. Whatever it is, it may be a new avenue to understanding how Americans will react to some of the things that the current government of the United States is doing.
