A Clark County grand jury rejected two high-profile cases this summer. It’s created a mini-tizzy for the legal world, criminal justice reformers and court watchers (aka people who love the paint-drying adventure of institutional processes). It’s only a mini-tizzy because both cases are fairly limited as to their public facts — but still weird enough because the cases involve polarizing figures: a former cop named Kenneth Lopera who killed a guy with a chokehold, and an MMA fighter named Nick Diaz who is accused of choking his girlfriend.

Maybe folks aren’t rioting in the streets because few care to know exactly what a grand jury is — or whether its power is being abused (cue ominous foreshadowing chords of bum bum buuuuum). It’s all undeniably intriguing, however, not only because grand jury failures-to-indict are rare, but also because the Clark County district attorney decided to still pursue charges against Diaz but not against ex-officer Lopera.

If you already understand the inner workings of the grand jury system in Nevada, skim over this column until you get to the juicy insinuation of maybe something fishy going on. But if you don’t really know how grand juries work…

HOW AN ALLEGATION BECOMES A CASE IN NEVADA

Let’s take a random person. Let’s call that person Harvey W. and let’s say he has found himself on the police radar for committing some offense like Open and Gross Lewdness. Maybe someone saw Harvey W. do something freaky with a rubber tree plant in the public square or maybe the police saw it themselves and, through some degree of investigation, the police believe he’s committed this serious offense. “Probable cause” having been established from the police perspective (this is sometimes reviewed by a judge), Harvey W. is then arrested under the relevant provision of the Nevada Revised Statutes (NRS) defining the crime of Open and Gross Lewdness.

By law, Harvey W. must appear in front of a judge, and – for gross misdemeanors and felonies – that event must happen quickly. Forty-eight hours, to be exact, for the paper review to make sure probable cause was indeed in place, and within an additional 24 hours to be guaranteed being seen by a judge. In Nevada, the majority of arrested people first appear in court in front of an elected county judge called a Justice of the Peace.

After dispensing with matters of legal representation and bail and such, the judge confirms that a document outlining the charges (called a “Complaint”) has been lodged with the court, and further that Harvey W. understands what the allegations are. Typically, the judge will then set a date for a court proceeding called a “preliminary hearing.”

If and when the preliminary hearing happens (and that’s a big “if,” dependent on the prosecutor), the district attorney or attorney general calls witnesses with relevant information to testify under oath. Harvey W. sits there (confronting his accusers, eye-contact style) while represented by a lawyer who gets to cross-examine the prosecution witnesses. After the prosecutor is out of witnesses, Harvey W. has the right to testify if he wants, or not. If he doesn’t, that fact can’t be used against him. Both sides can make an argument as to why “slight or marginal evidence” exists (or doesn’t) in pursuit of proving the two necessary things to make any case move forward: (1) was a crime committed and (2) is it likely that Harvey W. committed it? Slight or marginal evidence is a pretty low standard which is why most, but not all cases, make it through a preliminary hearing onto the higher court for a trial setting.

THE OTHER OPTION, OR WHEN THAT DOESN’T HAPPEN

Under Nevada law, though, the prosecutor doesn’t have to follow the lower court pathway. Indeed, the law provides for use of the grand jury option without any limitation (and maybe that should be far more controversial than it is).

Originally, the grand jury was designed, in part, “to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” The highest court in Nevada has said “[t]he grand jury's mission is to clear the innocent, no less than to bring to trial those who may be guilty.”

Modern day criminal proceedings do not regularly suffer such niceties. Perp walks and Twitter blasts are the norm. The “grand jury of public opinion” is swift, relentless and usually bad news for alleged perpetrators, whether presidents or a lowly ham sandwich (an over-used but apt metaphor that conveys how easy it is to indict someone).

Most everything that makes it to the Nevada grand jury moves forward – and as such, new consequences and credence attach to a prosecution. Then, arrest, increased bail, legal representation fees and the whole toy box of indignities attach to the person indicted. So, it’s usually a big deal when a grand jury doesn’t dutifully follow the prosecutor’s request for a green light. (As noted above, that’s now happened twice this summer — and no one seems to recall the last time it happened in Nevada!)

There are very distinct differences in one method over the other. Foremost among them, with a grand jury, the prosecutor gets to present only one side of the story without a defense attorney or even the accused in the room. There is no cross-examination, though any citizen empaneled on the grand jury can ask a follow-up question. The prosecutor instructs the grand jury as to the relevant elements of the offense, and then ends the presentation by requesting that the grand jury return what becomes the Indictment.

While it varies from place to place even within Nevada, in Las Vegas when an indictment is scheduled to move forward, the presentation usually happens with only general notice to Harvey W. And when the grand jurors return, as they usually do, with the thumbs up, the prosecutor gets to ask for whatever outrageous bail they want, as well as ask for the issuance of an arrest warrant.

Sometimes Harvey W. may be sitting in jail or home on bail thinking that a preliminary hearing is still going to happen, but then BAM!, an Indictment occurs and now it’s a whole new game. Of course, under the law, Harvey W. had to be told that the grand jury was going to meet soon, and Harvey did have the ability to testify if he wanted, but most attorneys recommend that their client not take part in the one-sided affair. Theoretically (and by theoretically, I mean by law) the prosecutor is required to present “any evidence” that could explain away the charges. Defense attorneys often complain that the prosecutor rarely takes this obligation seriously.

And those are the two ways a criminal charge becomes a criminal case set for a trial.

WHY WOULD THE D.A. GO TO A GRAND JURY INSTEAD OF A PRELIMINARY HEARING?

This is the big question and really, good luck getting a straight answer out of anyone, let alone the Clark County district attorney’s office. There is a manual at their office that lists the reasons that usually justify seeking the grand jury route, but nothing that limits a plucky deputy D.A. or the top brass from deciding to do it one way over the other.

The “cases then lend themselves to grand jury” offered in the March 2014 Clark County District Attorney Policy and Procedural Manual (sorry, they don’t like me enough to give me updates, if any), are as follows:

Cases That Often Lend Themselves to Grand Jury Presentment:

1. Cases with multiple defendants.
2. Cases where the justice court appoints a private attorney who is not a track attorney (such that the grand jury process saves the County money).
3. Complex or politically sensitive cases.
4. Cases where there have been numerous continuances and for whatever reason, the deputy is having trouble getting to preliminary hearing.
5. Cases where the witnesses are undercover police officers who don’t wish to be exposed publicly by appearing in Justice Court.
6. Cases with small children (depends on your child).
7. Cases which need to be expedited for any reason.

There is an additional, cynical reason one might seek a grand jury: the public can sit in, and TV cameras can and do often roll, in an open courtroom including preliminary hearings. The D.A. in those cases must submit to airing it all out, and that doesn’t always play well, especially when prosecution witnesses are subject to a blistering cross-examination.

Cross-examination is a tool that has been famously if not hyperbolically described as “the greatest legal engine ever invented for the discovery of truth.” And while that might not be enough to get a case tossed out at preliminary hearing, it has the ability to weaken the resolve of the prosecutor, especially as the media (and other interested parties) could be in the room.

Perhaps the most cynical reason of all comes from the D.A. manual’s number 3 reason, though – cases that are “complex or politically sensitive.” While the domestic violence charge against Nick Diaz doesn’t seem so complex as to warrant engaging the grand jury, both cases arguably have a degree of political sensitivity to them. Whenever cops are accused of misusing power or hastily killing people, or when there is a celebrity involved, a D.A. may find himself behaving in ways he otherwise wouldn’t.

Many in the legal profession find the seemingly boundless rationales for going the grand jury route distasteful and possibly disingenuous. This stems from the sheer and simple fact that if a case isn’t looking good, or doesn’t have the right optics, or isn’t moving in a way the prosecutor wants, then poof! – it routinely goes to the grand jury. And while a defense attorney can challenge a grand jury indictment after-the-fact on a host of grounds including insufficiency of evidence, it’s a high burden to prove and typically not a serious consideration.

And then there’s additional frustration tied to the fact that even if a case goes to a preliminary hearing and a judge throws it out, the district attorney can under law try again with the grand jury. The only hiccup being that the D.A. must, upon a defendant’s request, tell the grand jury a judge has already looked at the case and dismissed it. Of course, the clever prosecutor often fashions the grand jury case in an ever-so-slightly different way in order to bypass this requirement or offers a suggestion (hopefully only when fair and just to do so) that there’s different evidence that was not specifically known to the Justice of the Peace.

At best, new evidence is the real motivation. At worst, going to a grand jury after a case has been dismissed is sour grapes, vindictive and may even occur for petty reasons like tacking on charges after losing or trying to secure a higher bail.

WHAT ABOUT GOING BACK TO A PRELIMINARY HEARING AFTER LOSING AT A GRAND JURY?

As it is somewhat of an anomaly to not get a grand jury indictment in modern day Nevada, there aren’t a lot of cases to review to see whether there’s a set policy that district attorneys have taken or a uniform approach when challenged in the courts.

What is clear is that unless the D.A. is proven to have consciously shown a disregard for the rights of a defendant, a second shot via a grand jury is allowed even after a case has been dismissed by a judge at a preliminary hearing. What’s uncertain (since it rarely, if ever, happens) is whether the D.A. can even go back to a preliminary hearing after a try at the grand jury came up short.

Which takes us back to the ex-cop who tased an unarmed man seven times and used a Las Vegas Metro Police Department unapproved chokehold, which according to the autopsy at least contributed to the death of Tashii Brown. And also takes us back to the MMA fighter whose girlfriend claims he choked her and slammed her to the ground.

The grand jury, for whatever reasons, decided not to push the cases forward to trial. There are transcripts of both proceedings, but as the cases didn’t advance, those transcripts may not be produced. And grand jury deliberations aren’t ever a matter of record, so guessing why would be nothing more than speculation.

The intriguing part, though, is that the same Clark County district attorney’s office has taken such wildly divergent approaches to what to do next.

Regarding the ex-cop, the D.A. went to the trouble of issuing a formal statement that maybe came off as a little too agonizing to ring true. It can be summed up as saying, “If we were to go to trial, we’d have to prove the offense beyond a reasonable doubt, and since a grand jury didn’t even find slight or marginal evidence on the named charge of involuntary manslaughter, it is not in the interest of justice to pursue the case further.” In other words, the D.A. said “we tried, the grand jury said no, so we’re not pursuing it.”

At the top of this column, I promised an insinuation. The D.A. appears to be buckling to the pressure of the police to simply drop Lopera’s case and he can do that by taking cover under the grand jury. What bad luck that the Diaz case came out at the same time. There is no such pressure to drop a domestic violence allegation, since the D.A. has a long history of also counting on the support of and cultivating relationships with victim rights groups. Thus, the contradictory positions, given similar grand jury results, seem cut-it-up-and-put-it-on-rice-with-a-little-wasabi-fishy. And that’s without getting into the hard-to-ignore reality that in the cop case, the victim is a person of color; and in the MMA case, the defendant is a person of color.

Honestly, I don’t know enough about the facts to probe into this last point, nor does it really need to be argued. I am not calling out the D.A.’s office as racist; I’m only noting what appear to be a couple of intriguing facts in this case. And they call for a number of questions.

Why even go to the grand jury in the first place, as it’s not required? And if the Clark County district attorney does elect to take the case to the grand jury, knowing that indicting an officer for any charge of this sort under these circumstances is rare, why approach it the same way as you already have been when that tactic is destined for failure? And why give up so easily when the law allows you to try again with court permission? And if the Clark County D.A. is just bad at indicting police officers in shooting cases, why wouldn’t the attorney general take over, as he is allowed to be a prosecutor under law, as well?

Compare and contrast the cop case to a contentious hearing a day earlier in the Diaz matter, where the very same D.A. said (sans sorrowful sentiment) that they’re full steam ahead to try to prosecute him on the same charges (choking) by way of preliminary hearing — which may actually not be authorized by law. That matter has been set for Aug. 30, and Diaz remains on bail.

So what’s the difference?

Technically, none.

NEW LIGHT SHED ON THE PROCESS FROM THESE GRAND JURY DISMISSALS

Technically, no difference, but as far as “political sensitivity” – there’s lots.

The Las Vegas Police Protective Association (LVPPA) is the Las Vegas police officer’s union and advocacy group. They are powerful and don’t take kindly to officers being charged with crimes in the course of duty. In fact, their legal team is headed up by former Clark County D.A. David Roger. The LVPPA has been all over the Kenneth Lopera case, and David Roger’s firm entered an appearance as his counsel. They have made no secret about how they were fully on the offensive for the audacity of the D.A. to arrest a police officer.

On the other hand, numerous human rights and criminal justice reform groups like the ACLU take great issue with Lopera’s use of a taser multiple times before he ever got to the contributorily lethal chokehold.

Involuntary manslaughter and oppression under color of law (the two charges Lopera faced) are not simple matters, and it is possible the grand jury was instructed in the law by the D.A. in a manner that could have raised the burden to the point where it would be nearly impossible to find probable cause. Or maybe, the D.A. went overboard in presenting “exculpatory” evidence, and by overboard I only mean far more than what is usually done when it’s just an ordinary citizen being the subject of an indictment.

But there I go again. I’m rank speculating. Because, formal statements aside, the D.A. has not yet released the wording of all the instructions the grand jury was given, and it doesn’t seem likely that the transcripts of the secret proceeding in this case will ever be produced unless somehow it gets caught up as discoverable in the civil proceeding that Tashii Brown’s family has initiated. Then again, the case may just settle as did a different LVMPD case last week where there was another taser-related death of an unarmed man. That remarkably similar case from 2010 cost taxpayers $500,000 and likewise resulted in no criminal charges.

Which leaves us with MMA Fighter Nick Diaz. His attorney, Ross Goodman, has vowed a vigorous defense and while he can’t outright suggest that the D.A. is applying a double standard for a case they really didn’t want to prosecute versus one they do, he can make an interesting argument. Goodman has the option of filing a motion to say that the law explicitly contemplates only a subsequent try at an Indictment if a preliminary hearing fails, but provides no such counterpart the other way. That allows a challenge to also include a charge of willful and conscious indifference to the rights of a defendant.

This could put the Clark County DA in a very awkward position of once again defending why persons accused are being treated differently. And perhaps instead of moving past the news cycle as we often do, these strangely converged cases will provide an impetus to think a little more about institutions like the grand jury and those empowered to utilize them.

Columnists's note [added at 1:01 p.m. on Thursday, Aug. 30, 2018]:  After the publication of this column, the district attorney suddenly changed the course he had been pursuing and dropped all charges against Nick Diaz. Unlike the immediate decision to dismiss charges against ex-police officer Kenneth Lopera, the D.A. has not yet released a statement explaining his actions. It will be interesting to see whether the D.A. now concedes that his office can never pursue charges once a grand jury has failed to indict, and whether Attorney General Adam Laxalt will pick up the prosecution of Mr. Lopera. The yet unreleased transcript and jury instructions in the Lopera grand jury proceeding would still be very instructive as to the transparency of the DA's actual efforts to prosecute police officers.