Jury instructions

What happens when prosecutors in Clark County take a suspect before a local judge, and that judge rules that authorities have insufficient evidence to proceed to trial?

It's common practice -- especially in Clark County -- for state prosecutors to seek a "second bite from the apple," hauling the same case before a grand jury to see if they can get an indictment there, says Jason Frierson, a lobbyist for the Clark County public defender's office.

Enter Senate Bill 364, which would have barred state prosecutors from going to grand juries with cases that a judge has already thrown out at a preliminary hearing.

Prosecutors objected to that, arguing additional evidence can turn up after a judge has thrown out their first attempt to prosecute, meriting the "second bite" -- a better alternative than letting some likely criminal walk free just because a witness failed to show up the first time, or whatever.

Tuesday, a state Senate committee split the difference, forwarding to the Senate floor on a 4-3 vote an amended version of the bill that will still allow prosecutors a "second try," but will at least require that grand jurors be informed the case before them has already been seen and rejected by a magistrate.

The bill's sponsor, Assemblyman William Horne, D-Las Vegas, asserted the statement will be "boilerplate language" stating only that the case had been heard before, and a judge found the evidence insufficient. The defense will still not be allowed to present any evidence to the grand jury, said Mr. Horne, who is also a criminal defense attorney.

"I think it handicaps the prosecution," said Sen. Maurice Washington, R-Sparks, who opposed the bill. "It gives an unfair advantage to the defense."

Hardly.

Our system of justice, after all, is supposed to tolerate 10 guilty men walking free before it tolerates the jailing of one innocent. Back here in the real world, who hasn't heard the cliche that under current grand jury rules the government could easily "indict a ham sandwich"?

What is needed are reforms that would fully inform grand jurors of their main, historic duty -- to screen citizens from political or otherwise inappropriate prosecutions -- along with their common-law as well as statutory powers, including the power to challenge prosecutors' assertions, to ask their own questions, even to instruct prosecutors to investigate and bring them evidence on official malfeasance and other matters that may come to their attention through other channels.

As amended, SB364 is worth enacting. It falls far short of "giving an unfair advantage to the defense."