Over the past month, I served on a Monroe County grand jury. I ended my term believing there’s room for reform.
If you get a grand jury summons, you will likely have to serve. It’s not like a trial jury, where lawyers interview you to ferret out potential biases. There are almost no excuses to get out of serving and jurors are selected through a lottery. On the day I showed up for jury selection, there was a pool of 27 people for a grand jury of 23. Those are not great odds.
While some terms are for 30 days, my term was for 12 days spread over four weeks. (The people on the 30-day term get pretty resentful of the group that only comes a few days a week.)
All of the jurors got a state-produced grand jury handbook. A prosecutor gave us a two-hour presentation on what to expect.
Grand jurors can be paid $40 a day if their jobs are not covering their wages. Jurors do not get free coffee or parking. The grand jury rooms in the Hall of Justice were clean, comfortable and provided amenities such as a refrigerator and microwave.
The role of a grand jury is to decide if there is enough evidence for a person to be formally charged with a crime. Grand juries do not decide guilt or innocence. They decide if there’s reasonable cause to believe someone committed a felony. Grand juries are supposed to be an important check on prosecutors.
During a grand jury presentation, the prosecutor acts as the prosecutor, judge and defense attorney. They are the referees. Defendants are allowed to testify, but their attorneys cannot take part.
It takes 12 of the 23 grand jurors to indict someone. Grand jurors vote to “bill,” which means to indict someone, or “no bill,” which means to not indict someone.
Grand jurors can ask questions of witnesses. Grand jurors can discuss the case before they vote.
Grand jury proceedings take place in secret. All testimony is secret. It’s a felony to reveal testimony.
Take Lots of Notes
It quickly became apparent why we were advised to take notes. Prosecutors often presented half of their cases on one day and the other half on another day. They were engaged in a constant juggling act of scheduling witnesses and obtaining necessary documents. One prosecutor had to cut off her presentation to drive out to another court to get additional evidence. I asked, “Don’t you have interns to do that?” Apparently not.
Notes proved crucial to refresh our memories of certain cases we may not have seen in a week. We turned in our notes at the at end of the day. We got them back the next day. We were told our notes would be burned after we finished our term.
DWIs and AUOs
Our grand jury heard a total of 51 cases. Twenty-two of them involved driving while intoxicated and/or aggravated unlicensed operation of a motor vehicle charges. To be charged with felony DWI, you have to have a prior conviction. To be charged with felony driving without a license, you have to have a lot of suspensions.
These cases are tedious. They involve rote officer testimony and driving records. The grand jury has little reason to question officers’ narratives or official documents.
I realize state law requires a grand jury to hear all felonies. But I have to wonder if there is a more efficient way to process these cases.
Of the 51 cases we heard, five were “walk-in, no-bills.”
That’s when a prosecutor comes in and says, “I am presenting the case of The People v. (Insert Name). I am presenting no evidence in this case and I ask you to no-bill.”
Sometimes the feds took these cases. Sometimes witnesses didn’t cooperate. And sometimes, they were just bad cases.
Whatever the reason, there should be some mechanism to allow prosecutors to ask judges – not grand juries – to drop these cases. That mechanism apparently doesn’t exist under state law.
Indict a Ham Sandwich?
It’s true, prosecutors can indict a ham sandwich. The prosecutor’s ability to present a particular narrative is very powerful. It limits many of the questions grand jurors would even think to ask.
But I also learned, prosecutors can NOT indict a ham sandwich.
On one of our cases, the prosecutor gave an extremely thoughtful and thorough presentation on a serious crime. It seemed obvious this prosecutor would have no problem if we tossed the charge and it would be in the interest of justice to do so. That’s what we did.
Of the 51 cases, there was only one case in which the prosecutor was surprised at our decision.
I really enjoyed the dialogue after the cases were done. The prosecutors were generous with their time and answers. I felt they really cared about their cases and obtaining justice, even if justice meant a no-bill.
The vast majority of the cases we heard involved defendants who had already been arrested. That means they had already appeared in open court. The fact a grand jury was meeting to decide whether they should be indicted was not a secret. It seemed to me these evidence hearings could easily be done in public without compromising cases.
One defense attorney told me he doesn’t like the secrecy, because he can’t be involved on behalf of his client and he can’t immediately read witness testimony.
Another aspect of the secrecy bothered me. Even before this experience, I questioned why there’s no public record of no-bills. When grand juries no-bill cases, the public never knows. The public also never knows why the grand jury made its decision. The entire record disappears. This even applies to people charged with serious crimes, who have been portrayed on the news. That makes it very difficult to go back and report what happened to the case.
A former prosecutor who is now a defense attorney said grand jury secrecy is important for one main reason: Prosecutors have the freedom to lose. In the public eye, they may face more pressure to get an indictment. Out of the public eye, they can do the right thing. In this way, the system protects the defendant. My grand jury saw this play out several times.
There are other reasons for secrecy, such as protecting witnesses and investigations. Once someone has been arrested, I think those reasons start to fall apart. Criminal complaints often have witness statements. Witnesses have to appear in open court eventually, and defense attorneys will learn their names beforehand.
I think there’s merit in considering opening up the grand jury process in some way.
I went into this thinking I would be very skeptical of cases and ask lots of questions. Those opportunities didn’t come up often. I didn’t feel my voice as a grand juror was very important.
One juror asked a prosecutor if she liked our group. She said she did because, “Some people think this is like TV. They’re defense attorneys and they’re not as hospitable…they badger witnesses.”
The prosecutor had a point. We’re only there to determine if there’s enough evidence to charge a person with a crime. Only 12 votes of 23 are needed to indict. The standard is pretty low to get an indictment.
But what’s the alternative? Having a lone judge decide if there’s enough evidence to go to a trial? I don’t think I would object to that system for the traffic offenses. We should definitely not have a system where prosecutors decide on their own what charges someone would face.
I don’t know the answers. I do know I walked away with mixed feelings about an imperfect system.