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Lorelei Laird: Can a grand jury really indict a sculpture?

  • Slate
  • Published Tuesday, Oct. 8, 2013, at 12 a.m.

An Overland Park grand jury may criminally investigate a sculpture.

The bronze sculpture, installed in the Overland Park Arboretum, shows a headless, bare-breasted woman photographing herself. Artist Yu Chang may have intended it as a criticism of sexting, but the American Family Association of Kansas and Missouri sees his work as obscene.

Conservative groups have turned citizen grand juries into a kind of legalized mob justice.

Kansas is among the six states that permit citizens to impanel grand juries. As a result, Overland Park officials have spent about $35,000 to defend the sculpture from criminal charges – and the fight is by no means over.

Grand juries investigate whether there’s enough evidence to charge someone with “a capital, or otherwise infamous crime,” as the U.S. Constitution states – generally a felony. In most areas, judges or prosecutors impanel grand juries. That’s important. Because the jurors are not legal experts, professional guidance acts as a check on misuse of the grand jury’s powers.

But by design, the citizen grand juries allowed by Kansas and five other states don’t have professional guidance. Envisioned as a way for the people to stop official abuses of power, they grew out of a tradition that started in colonial times, when grand juries refused to indict people for civil disobedience against the British government.

The trouble is, the people can abuse their power, too. In Kansas, conservative groups have turned citizen grand juries into a kind of legalized mob justice – a tool for threatening people (and objects) they dislike. Multiple Kansas grand juries have been formed to investigate adult book-stores, strip clubs and abortion providers. Few convictions have resulted.

One infamous case against George Tiller – the Wichita abortion doctor assassinated in 2009 – demanded the medical records of every patient who sought a late-term abortion at his clinic. The Kansas Supreme Court ultimately reined this in as a “fishing expedition,” but upheld the existence of the citizen grand jury as constitutional.

That’s the background for the investigation of the Overland Park statue. The AFA gathered more than enough signatures to impanel a citizen grand jury – 2 percent of the votes cast in Johnson County in the most recent gubernatorial election. The resulting grand jury sat for one day and summoned no witnesses before indicting no one under state obscenity laws.

Good call. As the American Civil Liberties Union points out, the legal definition of “obscenity” includes being devoid of artistic merit, which is a tough sell when the target is a work of art. It’s also not clear who would have been charged. The sculpture itself? The artist? City officials?

But the result angered Phillip Cosby, state director for the local AFA. Cosby blamed Johnson County District Attorney Steve Howe for “hijacking” the investigation. The AFA also joined with anti-abortion groups to pass a bill to “reform” the citizen grand jury that requires that petitioners address the grand jury before any prosecutor gets involved. Not surprisingly, the Kansas County and District Attorneys Association opposed it as inappropriately politicizing the grand jury process. But the Legislature passed new rules anyway, and now the AFA is using them to try to impanel a second citizen grand jury.

Self-government is fundamental to American democracy – but that ideal sometimes falters in the face of bad decisions by “the people,” like unconstitutional ballot initiatives and politically motivated recalls. We don’t need citizen grand juries – especially not to criminally investigate a piece of art.

Lorelei Laird writes for Slate.

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