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Over the past month, I served on a Monroe County grand jury. I ended my term believing there’s room for reform.

Getting Picked

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.

Our Role

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.

Walk-In, No-Bill

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 Secrecy

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.

Rubber Stamp?

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.

13 Responses to I Was a Grand Juror

  1. April 8, 2015 at 5:56 pm Dean Ekberg responds:

    Thanks for posting this. It was very informative and provided something of a “window” through which to look at this. I’ve been on a couple trial juries over the last 30 or so years, and while that was inconvenient each time, I learned a great deal in the process. As convoluted as the legal system seems to be, I did come away with a feeling that my time had been well-spent.

  2. April 8, 2015 at 6:14 pm Dick Ginkowski responds:

    Rachel, here in Wisconsin we pretty much abandoned the grand jury in state courts (we hold maybe one grand jury statewide every ten years or so) and allow prosecutors to directly file charges. Within ten days (20 days if not held on bail or on bail less than $500) a preliminary hearing will be held to determine if there is probable cause to believe that the defendant committed a felony. If a prosecutor denies a charge an aggrieved party can ask for a judicial review. We also have a “one man grand jury” in which a judge essentially sits as a grand jury (we call it a John Doe investigation). They are used a few times each year, mostly to ferret out corruption or secure testimony from reluctant witnesses. Your impressions of grand jury service are important (no free parking–ugh!). After I was elected judge but before I took office I sat in the back of my courtroom to get an idea of how it looks to the person who isn’t a lawyer. I saw some things I didn’t like. A defendant representing himself had no water to drink, nothing to write on, no statute books and no idea of what to expect. I bought cases of bottled water, pens, legal pads, statute books and instruct defendants on basic procedures.

    • April 9, 2015 at 7:46 pm Joe In spencerport responds:

      Jury duty is exactly what it says, duty. Specifically your patriotic duty to participate in government and pay back to the society that makes your $240 billing rate possible.

      • April 10, 2015 at 9:16 am Some Guy responds:

        No, it’s called jury SERVICE. One’s only patriotic duty is to not impose anything by force on others who don’t want to be sheep. Most people are simply too subservient to those who are supposed to be serving them (and have made a career out of it) to fulfill the proper lawful and constitutional role of a jury — petit or grand. Rachel made an EXCELLENT point about just how wide this chasm between the servants and those supposedly served is when explaining the pay that is so insultingly low (below minimum wage) and no parking reimbursement that a good number of people I know refuse to accept payment for something upstanding people need to do. But the system treats everyone like proles these days, and most people just go along and accept it.

        That oath that people showing up for jury service that obligates them to enforce statutory law above the Constitution and its

        Amendment XIII Ratified 12/6/1865.

        1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

        2. Congress shall have power to enforce this article by appropriate legislation.”

        There is nothing patriotic about believing you own other people, either directly or through the ballot box. The people own the offices, but they do not and cannot own other people. That sort of ignorance is why this nation becomes less free by the day, and as OAJ puts it, when those higher ideals are at the mercy of biased and fragile humans who don’t respect them in the first place, be far, far away.

        Chief administrative judge for the region Craig Doran performed an incredible DISSERVICE to the people of this region not too long ago by seeking to use force to achieve what reason either could not (or where reason perhaps was never employed in the first place). The system, as it presently exists wants sheep. A constitutional republic needs people to not be sheep, or at the mercy of the whims of sheep.

        I’ve come across an incomprehensible number of people, even college “graduates”, who are functionally and civicly illiterate and harm everyone by voting, the very last place they should ever be empowered is a jury box or a grand jury room, because they will do as they are told when critical thinking and stoicism are prerequisites for liberty.

        The Constitution was written for everyone, in language any literate individual could understand; but the patriotic duty of people is to not lessen the ideals it espoused, much less convert them to the lowest common denominator. The government school systems in most places in the U.S. (even the exaggerated successes of a small number of suburban schools here) isn’t all that different in consequence from Jim Crow or slave codes or European feudalism, because literate people are a threat to corrupt and self-serving elites (and it was only the advents of the Magna Carta and the firearm that changed that dynamic for humanity).

        We live in a shamefully ignorant society that can’t even recognize that neither democracy nor DUMBocracy are going to allow them to be free, and thus, most render themselves while angrily asserting that they are free when they hold neither the beliefs or actions necessary to demonstrate such.

    • April 22, 2015 at 4:18 pm Some Guy responds:

      There’s a pretty decent chance the Supreme Court is going to rule Wisconsin’s process unconstitutional because it is the epitome of why the people are to hold ultimate authority over public servants, and not vice versa.

      “Google” the term “Wisconsin John Doe raids” to see some of the most rampant criminalization of constitutionally-protected activities. When public servants cease serving the public, and instead, commit wanton aggression against the people, there’s a small, but important, minority of people who will simply refuse to tolerate such criminality performed allegedly in the name of the people. The criminals in public office better understand that beyond the Constitution itself, the second most important law is the law of unintended consequences — tyrannical actions are going to create the climate for defense against said tyranny.

      • I was the victim of a horrible aggravated assault by a group of people I was and still am trying to recover from my shattered legs The detective only charged one person and in the beginning of the case and then later on tried to tell me he didn’t think it was the person I identified twice. Needless to say today was my grand jury and after I testified for an hour the detective went in and 10 Minutes later the prosecutor said they returned a no bill I was am shocked all the plates and medical evidence for the past 8 months was overwhelming when I asked for an explanation she stated she couldn’t say needless to say myself and my entire family have absolutely 0 faith in the grand jury process and the entire judicial system. My fiance believes and told the prosecutor that officer is on the take or the grand jury is blind ..Thank you nanci

  3. My billing rate is $240 per hour. I get $40 per day aand no parking or food? What a joke.

  4. So will this help you in your job in any way?

  5. April 9, 2015 at 8:06 am RaChaCha responds:

    Wow, I learned a lot from this. Thanks, Rachel! Your reporting is unindictable (no bill).

  6. April 9, 2015 at 1:10 pm Some Guy responds:


    Do you carry a Constitution in your purse? If not, you should. Because I’d bet my life that the assistant D.A. never told you or any of your peers about the grand jury’s power to issue not just indictments, but presentments:

    Amendment V

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    That omission is not truly an accident. Most “law” school graduates never actually learn much about law, they are indoctrinated in legal procedure, which diverged from actual law decades ago in this nation.

    How many subpoenas did your grand jury issue? If any, how many of them were sua sponte, or on the grand jury’s own initiative? If a name came up during testimony, or a grand juror had a belief that there is more to an incident that is being shown by the D.A., were you aware that you as a grand juror can issue absolute subpoenas for witnesses, without asking your servant, the D.A., for “permission”?

    Now onto “presentments”. A presentment in the Fifth Amendment can only mean what it meant to those who ratified it on 12/15/1791, and that is it is like an indictment, except rather than being initiated by a source external to the grand jury itself (i.e. D.A., attorney general, private attorney general, et al), it is initiated by the grand jury on its own. Think you and 24 of your peers (this change to 23 was made right in the aftermath of WWII, when the American people were totally unaware of what government had in store for its now seven-decade long war on the Constitution for which it stands), in a room, determining who to subpoena to investigate government corruption ranging from Cuomo tanking the Moreland Commission to the “Friends of Maggie” scheming to defraud the taxpayers of more than a quarter billion dollars through various local development corporations.

    That’s why you remain unaware of that incredible power to investigate potential official wrongdoing, because the righteous use of the grand jury, as the founders intended, stops tyranny before it starts.

    PRESENTMENT,/b>, crim. law, practice. The written notice taken by a grand jury of any offence, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the government; 4 Bl. Com. 301; upon such presentment, when ‘proper, the officer employed to prosecute, afterwards frames a bill of indictment, which is then sent to the grand jury, and they find it to be a true bill. In an extended sense presentments include not only what is properly so called, but also inquisitions of office, and indictments found by a grand jury.”

    A grand jury exists to investigate, and refer for prosecution. That is a power that goes far beyond merely rubber-stamping “true bill” or “no true bill” on the incredibly limited information the executive branch decides to put before you. Ignore for a brief moment the ~95% of cases you heard where guilt of an actual felony with an actual harm to another was more than sufficiently demonstrated

    And as far as the DMV it is the epitome of Soviet-esque bureaucracy and has practically zero accountability to the people, they are the “muscle” for the insurance cartel, nothing more. I’m sorry you felt like those cases were tedious, maybe you should look into the Kafka-esque system where some black high school dropout gets a seat belt ticket coming home from his job, is behind on his insurance, and it metastasizes into multiple AUO, and his upward mobility is mercilessly put on hold, so all those other government employees working for “the system” can justify lording over society as the petty tyrants most of them are when called out on the nature of what they actually do. How many of those non-felony AUO’s ever resulted from a finding of guilt at trial where the accused was adequately represented by counsel whose only obligation was to THAT client, and not the hundreds of others the PD’s office has to sell out in order to keep up with their insane caseload (D.A.’s are not overworked, they merely lack the ability to discern right from wrong when doing so could raise questions about the propriety of the nature of what they do, if they stopped charging people with victimless “crimes”, the whole wealth extraction scheme collapses tomorrow, and they have to find an honest job)? Look at the statute, it is IMPOSSIBLE in most cases for the state to practically prove the essential elements of the charge because of the witness requirements, and any competent attorney knows this, but the system will simply create so many burdensome pre-trial obstacles that are even more expensive than the lesser charge they can compel even a truly innocent motorist to cop a plea to rather than vainly attempt to “fight city hall” and its near limitless supply of tax slaves to underwrite lawyers willing to excuse the unjust and inexcusable.

    But back to the grand jury. Anyone who sincerely believes in the rule of law must be apprised at how much it has been undermined by those sworn to uphold it. Here is a good start:

    The SCOTUS opinion in United States v. Williams (90-1972), 504 U.S. 36 (1992):


    The foremost academic expert on the grand jury, Susan Brenner at the U Dayton School of Law:


    and noted civil rights lawyer, Harvey Silverglate


    • April 9, 2015 at 2:39 pm Rachel Barnhart responds:

      No question on the AUOs that one incident can snowball into many. As can not paying child support. Many reasons for multiple suspensions that have nothing to do with ability to drive.

  7. I have observed thousands of cases and people before the court. I have observed hundreds of trials. ( I work in a court ). You bring up many good points and observations that you have made. I could go on and on with my observations and opinions, but that wouldn’t do anybody any good. My recommendation to anyone would be to AVOID the criminal justice system as much as possible. It is not like television. People are people in any line of work and they all come with bias. When you get involved in the criminal system, you are dependent on many different peoples honesty and integrity. That includes the police, the witnesses, the victim, the ADA, the defense attorney, and even the Judge. Some ADA’s are compassionate people and will work towards a fair deal or outcome. Some ADA’s are hardened and only want another conviction. Same for Judges and defense attorneys. For this reason only, we do need a system that puts citizens in a room that will decide on the merits and circumstances of the situation to determine if a crime has actually been committed and should proceed. I’ve seen many cases referred to the Grand Jury by the defense because the ADA would not listen or agree to any resolution other that the charge. Perhaps one of these were your no-bills? As you witnessed in your short time, the criminal justice system involves real people with real situations and sometimes spotty evidence. Just think if you were watching this for 10 years or more. What interesting stories could you tell. I wonder if your opinion of the system would change?

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