In the wake of what happened recently in Ferguson, Missouri, and Staten Island, New York, grand juries have become the bete noire of racial minorities and the bugbear of legal experts with a liberal bent. When I was called to serve on a grand jury almost two years ago, it suddenly occurred to me that my knowledge of what role exactly that jury played in the justice system was murky. So what to do other than research the issue before I fronted up at DC Superior Court to perform, like the good citizen that I was, my civic duty.
Clearly, we are familiar with, and many of us over the years have served on a petit jury, that panel of 12 men and women who sit through the proceedings of a trial adjudicated in a court of law, listen to the evidence presented by both sides, and then adjourn to their quarters to determine a defendant’s guilt or innocence. The familiarity derives from our constant exposure to how the system works, all the way from iconic movies like 12 Angry Men (1957) to real life dramas like the O.J. Simpson trial (1995).
But a grand jury is a different kettle of fish altogether. To start with, it is secret. Only the 22 jurors and the district attorney (or the US attorney, in a federal case) are present in the room. The prosecutor, and only the prosecutor, is allowed to present evidence. A defendant is not given the right to have a lawyer by his side, though he can retain one, to sit outside the jury room, whom he is allowed to momentarily stop the proceedings in order to consult with.
All witnesses are chosen by the attorney from the prosecutor’s office and are not of course cross-examined by defence lawyers, given the fact that none would be present. Only grand jury members, the majority of whom are ordinary folks not well-versed with complex legal issues, can ask questions of defendants and/or witnesses. (This convoluted system can be traced back to an act by Henry II of England, later recognised by King John in Magna Carta in 1215 at the request of the nobility. It was introduced in the US in the early decades of the Republic.)
The role of jurors is simply to determine whether the prosecutor has presented enough evidence to indict the defendant, that is, whether enough “probable cause” was shown to them to warrant taking an accused man to trial. The jury does not determine guilt or innocence.
Of course the prosecutor’s office is not going to present a case, to 22 rational men and women, that does not evince probable cause. Attorneys in grand jury cases looking to get an indictment will get one. As simple as that. And where, conversely, those attorneys do not want an indictment, none will be forthcoming. Is the grand jury then a rubber stamp for prosecutors? Yes and no.
Yes, when you consider that, according to figures released for the year 2010 and cited in a New York Times editorial last Tuesday, federal prosecutors sought indictments in 162,000 cases. They succeeded in getting them in all but 11 of the cases. And no, if you consider that when they do not want an indictment, the defendant walks — as happened in the cases of Michael Brown in Ferguson and Eric Garner in Staten Island, cases where, respectively, a police officer shot to death an unarmed black man and a street cop choked to death another unarmed man who was peddling, not cocaine or heroin, but (hold on to your hat) untaxed cigarettes. No one is saying that the majority of the men and women who choose law enforcement as a career do not go by the rules. And we do know that police work can be depressing, at times emotionally draining, when you have to deal with problems that involve anything from domestic disputes to
violent crimes. But when those who break the law — including cops who are there to enforce it — break the law, then they must be taken to task. When they are not taken to task, doubts begin to gain traction among the underclass of society, whose animus towards police officers is legion, to begin with, that the justice system serves all citizens equitably.
In other words, they begin to believe that when the men in blue, who essentially work hand in glove with prosecutors and who arrest suspects and gather evidence for those prosecutors, kill unarmed civilians, the prosecutor’s office will not present a rigorous-enough case to convince a grand jury to indict.
So am I saying that the grand jury system is a farce, or is rigged? No, just that a solution must be found to avoid conflict of interest. As the New York Times opined in its editorial last Tuesday: “The best solution would be a law that automatically transfers to an independent prosecutor all cases in which a civilian is dead at the hands of the police ... The police should be among the strongest supporters of this arrangement because both their authority and their safety are undermined when the communities they work in neither trust them nor believe that they are bound by the same laws as everyone else.”
And, Oh yes, out of the two dozen cases or so presented to us in the grand jury I served on two years ago, over a period of five weeks, we voted to indict on all. (Grand juries hardly ever deadlock, for a majority will indict, even where there are dissenting votes.) Do you think the folks at the prosecutor’s office would have presented us with a case that did not include enough probable cause?
Since grand juries are secret and its members are enjoined against revealing what happened during their deliberations — at pain of going to prison — we will never know the extent of the weak evidence presented to them by the district attorneys, in Ferguson and Staten Island, that resulted in the statistically improbable decision not to indict. The African American community in the US, however, has its own views on that one.
Fawaz Turki is a journalist, lecturer and author based in Washington. He is the author of The Disinherited: Journal of a Palestinian Exile.
