Indictment? Inconceivable!

A memorable line from the movie "The Princess Bride" was delivered by a good guy, Montoya, to a bad guy, Vizzini:

"You keep using that word. I do not think it means what you think it means."

Montoya was referring to the word "inconceivable." However, Montoya's wisdom applies equally to the word "indictment."

In the media, "indictment" implies that the accused has committed a serious offense. Otherwise, why would the government indict him or her? The evidence must be overwhelming. TV newsmen intone the words with frowns and voices of doom: "a criminal indictment."

As lawyers, we have a responsibility to educate the public when language is used incorrectly. When legal terms of art enter general usage, much is lost in the translation. For example, a scathing audit of an organization can be described as a "stinging indictment," when all it does is sharply criticize and find fault.

Johnny Carson, the late talk show host, once remarked about having dinner at a New York restaurant that was a favored hangout for mobsters: "There were at least five indictments sitting at the bar."

Yet what does this ominous word really signify? An indictment simply means that the government has deployed its formidable and vast powers to compel a person to stand trial. An indictment is the beginning, not the end, of a long legal process.

Unfortunately, the everyday usages of "indictment" ride roughshod over the nuances of meaning.

On March 2, energy executive Aubrey McClendon was killed in Oklahoma City when his Chevrolet Tahoe crashed into a concrete viaduct. McClendon's death was either a bizarre accident or suicide. Without exception, news accounts noted that, just the day before his death, McClendon was indicted by a federal grand jury on bid-rigging charges. The indictment was widely reported - yet the government's allegations were, according to Forbes, "incredibly thin on details." The implications, while tacit, were clear: McClendon's indictment and assumed culpability were the motivations for suicide.

In the political world, there's speculation whether Hillary Clinton will be indicted on charges stemming from her personal email accounts while secretary of state. Pundits believe that an indictment would be fatal to Clinton's presidential chances. In U.S. political history, there has never been a presidential nominee who campaigned while under indictment.

Let's hit the pause button. Where does an indictment come from?

A prosecutor obtains an indictment by bringing evidence before a judge, or by sequestering a grand jury. The latter method is often preferred because a grand jury provides the aura of objectivity.

Really? A grand jury is the most frightening creature in the American justice system. It meets in secret. The records of its deliberations are sealed. Rules of evidence that apply at trial are voided; hearsay evidence can be used against you. You can't even talk to your attorney inside the grand jury room; you have to meet with counsel outside in the hallway.

As the old joke goes, a district attorney could get a ham sandwich indicted. Grand juries usually give the prosecutors what they want.

Prosecutors are also skilled at writing a "singing indictment." This type of indictment uses over-the-top phrases that could have been copied from a bad detective novel: "the evil web of conspiracy," "this heinous and shocking act." The press then can quote the indictment, "singing" phrases and all, without fear of a libel suit.

If you are indicted on felony charges, one thing is certain: financial ruin. While the prosecutors spend public money to put you in prison, you pay for a legal defense from your bank account. Faced with this awful dilemma, some innocent persons cop a guilty plea to a lesser charge, preferring the label of "felon" to losing their home, possessions and retirement savings.

Consider the case of the late Sen. Ted Stephens of Alaska. He was indicted by the Justice Department in 2008 on corruption charges and found guilty. He lost a re-election bid. But before Stephens was sentenced, a federal judge threw out the indictment and vacated the conviction. The judge discovered gross prosecutorial misconduct, including government attorneys who concealed documents that would have aided Stephens.

Prosecutors wield tremendous power in our legal system, and they make decisions in a highly politicized and closely-watched environment. Most prosecutors strive to exercise their power with discretion and restraint, but there are bad actors in their ranks. In 2006, Michael Nifong, the district attorney of Durham County, North Carolina, exploited rape accusations against the Duke lacrosse team to indict several students, manipulate local voters and win re-election. Fortunately, the rape charges were dropped, the accuser was discredited and Nifong was punished and disbarred. However, the Duke lacrosse case remains Exhibit A of prosecutorial abuse.

Next time you hear that someone has been indicted, exercise a healthy skepticism about the massive power of government prosecutors. Avoid a rush to judgment - and remember what the word "indictment" really means.

David Graulich is an attorney based in Fair Oaks.