A former Olympian wants to read the secret transcript that sent him to face a ten-year felony for pool damage. The government has prosecutors. The man who touched the water has a lawyer and a filing — actually, two filings in one: a demand for the complete grand jury transcript and a demand for the legal instructions prosecutors gave to the grand jurors about the elements of the crime.
The grand jury met behind closed doors. The charge carries a decade. The damage — the alleged damage — is the amount you would spend fixing a window somebody broke with a rock: one thousand dollars, the statutory floor. The Leona Helmsley who testified that only the little people pay taxes died at eighty-seven — and yes, she did serve nineteen months, but a nineteen-month sentence for $1.7 million in tax fraud is a rounding error against a young man looking at ten years for touching a pool. HSBC forfeited $1.256 billion — a billion and a quarter — in a deferred prosecution agreement that sent nobody to prison, and the same maximum a federal drug conspiracy draws for trafficking certain quantities of heroin is the same number the government wants for Hearn. The bank bought its way out with money it did not have to count. The Olympian fights with a transcript request.
The attorneys say “irregularities.” Grand jury secrecy — the shield that is supposed to protect the innocent by keeping the government’s hand concealed — is now the thing their client needs to see past. And this time the defense is not just asking for the transcript; they want to know what the prosecutor told the grand jury about the law. What did the government instruct the jurors about what counts as “property destruction”? Did the instructions include the mens rea requirement — that the damage must have been intentional, not incidental to touching water? When the law review literature shows that indictments have been overturned because of erroneous legal instructions, the demand for the instructions themselves becomes the sharpest part of the filing. The last man to demand the whole transcript — to demand both the testimony and the law — was caught in a case where the prosecutor misled the grand jury, and the conviction collapsed. The precedent exists. The law review articles document it. The defense is reading the same cases the rest of us are not.
A thousand dollars. The cost of a broken hotel telescope. The amount a bank makes in the second it takes to process your overdraft. The trial is set for September 28. The government has not shown its work. The lawyers are asking for the questions and the answers and the instructions the jurors received before they voted. The gap between a shut door and a ten-year sentence for a thousand-dollar property-damage count is the whole story of American justice in one paragraph, and now we also know: the government does not want to say what it told the jurors about the law.
The grand jury heard somebody. The grand jury voted, having been instructed by a prosecutor on what the law is. Now the man who was indicted wants to know what they heard and what they were told about the meaning of the charge. That is the request. If the evidence is as clear as the government wants it to seem, the instructions will show that the jurors understood exactly what they were doing. If the instructions were sloppy — if the grand jury was not told that property destruction requires intent, or that the damage must be substantial — then the transcript and the instructions together are the only thing that saves a citizen from a secret proceeding that did not do its job.
The charge is property destruction. The pool is still there. The prosecutors are keeping their instructions to the grand jury behind the same sealed door.