A Civic Duty
Many years ago, while living in New York, I was called for jury duty. No one told me what to expect, and the state only provided layers of bureaucracy. This was unfortunate because I arrived at the courthouse empty-handed save for all my paperwork, and proceeded to sit at an elementary school desk for several excruciating hours. Mercifully, the clerk finally informed us that the case was not going to trial, and we were excused. It was an incredibly tedious day to be sure, but I found pride in participating nonetheless—it’s a rare opportunity to overcome the disconnect between citizen and politics, and to peek inside the inner-workings of government.
Democracy is the idea that power is with the citizens of the nation via representation. In the United States, we codified the idea with the ratification of the Constitution.1 But for as much as the United States has remained true to its roots (indeed the grand jury appears in the Fifth Amendment), 18th century America is far different from the 21st: we are unfortunately seeing an ever increasing citizen-state disconnect. Nothing shows this reality better than our staggeringly low voter turnout.2 At just over fifty percent, almost half of the country’s population is theoretically not being represented.
Voting isn't just about what happens at the booth: it’s overcoming voter ID laws, researching the issues, selecting the best candidates, deciding on propositions, and just finding time to get out on election day. It’s easy to fill in the bubbles (or pull levers, or punch holes, etc), it’s a lot harder to have a full breadth of knowledge about what those bubbles represent.
Jury duty is another one of these intersections of government and citizen. Besides a military draft (which for all intents and purposes doesn’t happen) or taxes (intrinsic to living in the country), it’s the only function of our government that is a required civic duty. And yet I’ve found that grand jury is not only an often overlooked part of the process, but most people I've spoken to don't have a concept of what goes on, or what the function of a grand jury is. Although I fully admit to not having all the details myself at first.
Historically, grand juries have performed two functions: they decided whether someone should be charged (i.e. “indicted”) for committing a crime, and they investigate the conduct of public affairs. A colonial citizen could bring a matter (e.g. building roads, infrastructure maintenance, or corrupt officials) before a grand jury directly, and if it was found there was sufficient evidence for a trial, it would return the indictment to the complainant. That party was then given powers of attorney to represent the state and public interest. In the later part of the 19th century, the operation of local government was taken over by administrative agencies, an institution that did not exist in colonial times.
Nowadays grand juries hear evidence and consider indictments submitted to them by a prosecutor. They spend the bulk of their time deciding, therefore, whether probable cause exists to return a set of proposed charges against the defendants. After the indictment is issued, the accused person (the defendant) is either summoned to court or arrested (if not already under arrest), depending on the severity of the crime. Grand jury indictments are most often used for felonies, which are the more serious crimes, such as bank robberies or sales of illegal drugs. They are not usually necessary to prosecute less serious crimes (i.e. misdemeanors).
Where Justice Is Done
I live within the Boston city limits, and not one of the abutting towns of Somerville, Cambridge, Watertown, or Brookline. (Suffolk County follows the southern borders of Boston, but also includes Chelsea, Revere, and Winthrop up north.) Owing to this, I was summoned to the Suffolk County grand jury in early October. I begrudgingly boarded the B line on a Monday morning and made my way downtown to the Suffolk County Superior Courthouse in Pemberton Square. It’s nestled across the street from Government Center, shielded by the Center Plaza building. (Center Plaza actually takes its layout from the original residential buildings of the square.3) The Superior Courthouse is modern compared to its neighbor, the John Adams Courthouse; the former being built in 1937, the later in 1893.
The impaneling process (aka jury selection), begins when one-hundred people, from across the various Boston neighborhoods, are crammed into one or two small trial courtrooms. After some time, the judge addresses the entire juror pool, explaining the differences between grand jury and trial jury, giving basic instructions, and a speech on civic duties and the importance of the constitution. This is followed swiftly by raucous complaining from dozens of angry Bostonians: the grand jury would be meeting for three months, Monday through Thursday, right up until Christmas.
The only real screening is whether or not you would incur a financial hardship serving for three months—employers are only required to pay for three days of jury duty, and the state only compensates up to $50/day.4 This process bears little resemblance to the voir dire of a trial jury; in fact the defense plays no part whatsoever in the grand jury selection process. I got the impression our judge was lenient in dismissing people (students got to cut to the front of the line), although I’ve heard anecdotal evidence to the contrary, and a remark from a staff member about varying levels of leniency among judges. In any case, it took two days to find 22 people: 5 men and 17 women. In Massachusetts the grand jury is made up of 23 individuals, and requires 13 jurors for a quorum, and I assume it was not worth calling in another hundred people to fill one last spot.
During the impaneling process, I had asked about taking the stairs, but was politely discouraged as I could “end up on the 7th floor dock.” As it turns out, this is a term for the prisoner holding cells. I did so because of the bank of eight elevators, usually only half are responding to calls—which are incredibly slow to arrive—and hardly provide the throughput for the hundreds of people scurrying about the building at any one time. Now I inquired yet again about access to stairs to the sixth floor, and was pointed to a stairway adjacent to the lobby. Curiously, I pass by floor “3M” on my way upstairs, a floor not included on the elevators, which would mean that the sixth floor is actually the seventh. I never explored this mysterious floor, but made plenty of observations about the courthouse we would be working out of for the next three months.
Entering the Grand Jury room.
The building’s architecture feels like the leftovers of 1920’s art deco. Across the hall from us, the special grand jury courtrooms are behind heavy wooden doors with frosted glass windows, something right out of a film noir piece. Signage is written in the old-timey Broadway font. Above the office adjacent to our courtroom is written “witnesses” in yellowed capital letters. That room is now an office, and witnesses have been relegated to chairs and benches out in the hallway. Throughout the building pipes run like vines along the walls, light fixtures obviously once designed for chandeliers have been jarringly retrofitted with fluorescent lights, computer and electric cables snake across the floor, and the electrical circuits are laid out with no discernible logic. Such are the numerous problems with the building, that it could be mothballed and moved to Malden.5
Our own room is an eclectic mix of second-hand furniture and modern equipment. About thirty cheap office chairs (with no wheels, no reclining function, and uncomfortable fabric) are organized into three rows along the back of the room. In front of us are two extra large, nondescript wooden tables with space for two ADA’s, and the clerk and foreperson. Both the clerk and foreperson are volunteers from the group; they handle signing the indictments, tracking presentments6 and attendance, and record true bills7.
Surprisingly, the computer equipment is relatively modern. We rarely have any A/V trouble, but unfortunately most ADA’s aren’t very tech savvy. There’s a mobile computer cart with a large widescreen monitor, and an all-in-one PC for the recording equipment. The entire room is miked, which upon playback you realize picks up everything. A red light behind the witness stand, reminiscent of “ON AIR” signs from radio and TV, provides a visual indication when the attorneys go on the record. These recordings will be transcribed at a later date as grand juries no longer have assigned stenographers.
Suffolk County grand juries sit from 9am to 4pm, with a break at 11am and lunch at 1pm. If we get through the day’s docket, 4pm should be latest we have to stay, but the longer we hear each case, the better the chances of staying late to wrap up. This was dependent on a myriad of factors such as how many ADA’s were ready and present that day, if their witnesses showed up and actually stuck around (some would have to wait a majority of the day before testifying), the length of witness testimonies, technical problems, and the number of questions posed to witnesses by the jurors.
Because of the caseload Suffolk County generates, a special grand jury was convened years ago to assist. This requires the DA’s office to request specific permission for the appropriate funds. Historically, a special grand jury would be investigating organized crime or corrupt public officials, but in this instance it was merely dealing with a backlog of cases. So there is always two grand juries sitting at a time. It was noted numerous times that my own grand jury was the busiest the ADA’s could remember. In fact, we heard a total of thirteen homicides, and the most grand juries usually hear is four to five.
Back when we started, our case load was light, and began with fairly straight forward cases such as firearms and drugs. The prosecution usually calls just the arresting police officer for these cases, and we weren’t exactly dealing with criminal masterminds. (Any difficulties with investigations usually stemmed from technicalities or an inability to find witnesses.) These simple cases also served as a good introduction into probable cause and reasonable doubt. Again, grand juries only decide whether or not formal charges should be brought, therefor we only have to conclude there is reasonable doubt rather than proof beyond a reasonable doubt.
In the past, indictments have been dismissed because they did not match the evidence presented to the grand jury. After a case involving a juvenile, it was determined that jurors should be instructed on the statutes that were being considered.8 So throughout our service we’ve had instructions on murder, self-defense, joint venture, accessory after the fact, amongst others. Although it happens off the record, the jury can make an informed decision. Grand juries are not given different charges to consider, we simply vote on the charge presented to us. In rare cases grand juries can submit an alternate charge (e.g. first degree murder instead of second degree murder) but it’s a grey area without much case law.
While a case is in front of the grand jury, prior criminal acts are not admissible, and we are instructed to disregard any testimony we may hear to that effect. However, once an indictment is returned, and if there are prior convictions, the ADA will return and present enhancements. These additional charges could make the original charges subsequent offenses, the perpetrator a career criminal, or something along these lines. The process simply involves submitting prior criminal records as evidence, and we perform one last vote to include the past charges in the indictment.
We had several cases withdrawn from our consideration. It may come to pass that the defendant takes a plea deal, which makes presenting the case a moot point. Some cases are actually active investigations; if they cannot be completed before our sitting comes to an end, the prosecution must reintroduce the case to another grand jury (or extend the case and we come back at a later date to wrap it up). When this happens, the transcribed minutes are read-in to the new grand jury, as opposed to calling back witnesses to testify all over again. Other times, if evidence was subpoenaed, but the case ultimately didn’t go to a grand jury, a case will be opened, the evidence introduced, and the case withdrawn, in order to satisfy legal record keeping. Finally, if the prosecution believes it doesn’t have enough evidence to get an indictment, the case will be withdrawn.
On rare occasions, ADA’s would be bumped by a new homicide case. The pattern I observed was that these were active investigations and/or very recent incidents. In fact a couple of the homicides had occurred the previous weekend or within the last week or two. Most cases brought to us were a couple months old already, others within several months, but more rare were cases from a year or more ago. No matter how old the case, read-ins (the holdovers from previous grand juries) were considered the lowest priority when it came to the day-to-day schedule.
As it was recently reported, grand juries indict 99.99% of the time.9 In the 95 unique cases we heard over a three month period, we never once did not indict. All-in-all, we voted on 76 cases (80%), while 13 cases (14%) were withdrawn from us (mostly due to requiring too much additional time to complete). We have 6 open cases for which we’ve been recalled for one day at the end of January. This graph plots the number of cases we heard each day, and the chart below is an unofficial breakdown of our cases.
|Robbery and Larceny||10.5%|
|Rape and Sexual Assaults||7.4%|
|Child Rape and Endangerment||4.2%|
|B&E and Home Invasion||3.2%|
If you’re wondering how someone can keep track of 95 different cases, there’s a couple things to know. First, notebooks are purchased by the DA’s office in what must be Amazon-level bulk. By the end of our run, most people had filled at least two steno pads, some had half a dozen, others went all out with three-ring binders. Secondly, the cases that require taking notes at length make up the minority of those we hear. Gun and drug cases are usually too straightforward to warrant copious note-taking. The more involved investigations are unique in their own ways, and it’s often very difficult to forget what you’ve heard. And if it’s not the details of the case that stand out, you may very well remember the prosecutor and his or her own style of presenting the case.
The steno pads used by the jurors.
Law & Disorder
Suffolk County has an army of 140 lawyers that presents cases to the grand jury and prosecutes criminals. We only met a fraction, but saw many of them numerous times. From this sample size, it was about an even split between male and female ADA’s. Some seemed newer to the process, others struck me as seasoned pros. It’s important to note that they’re severely underpaid, barely starting out at $40k—not really fair pay considering living costs in Boston, or compared to the amount of work they have to put in. Yet a majority are always in good spirits, and only once or twice did I get a sense of angered frustration. So kudos to the ADA’s for a job well done.
Each ADA had his or her own style and idiosyncrasies. You pick up on differences like what they allow during examination (e.g. allowing witnesses to answer with interjections versus “yes” or “no”), or even how a witness is sworn-in (i.e. variations on “do you swear to tell the truth, the whole truth, and nothing but the truth”). Some came in reading from a script (there was literally a binder with scripts for the ADA’s to read from), others were content to do it live. The amount of legal CYA was just as varied: sometimes a line of questioning was numbingly verbose, other times blink-and-you-miss-it succinct. One ADA went so far as to time himself (the grand jury sign-up board requires the ADA to estimate how long testimony will take). Indeed, it was as much about getting testimonies in efficiently as it was getting them in properly. For as rigid as the law can be, it certainly seemed a lot more flexible than what I’ve been lead to believe.
To my recollection, we only encountered the CSI effect10 once, and it was a detective who took it upon himself to explain that what we see on TV isn’t reality (in that case it was fingerprints on a weapon). Most ADA’s weren’t visibly perturbed by anything of the sort, although one did mention that “CSI is the worst thing to happen to my job”. My peers were seemingly well aware of the TV/reality distinction, but if anyone wasn’t, it was never brought up. I did however sympathize with the ADA: technology is also depicted just as horrendously on crime dramas. The two most famous examples being the double keyboard and the Visual Basic IP tracking GUI interface. Both are completely nonsensical and utterly ridiculous. Often the writers of these TV shows do this on purpose. But I digress.
Following testimony and ADA questioning, jurors are given an opportunity to ask their own questions. One might be inclined to think some jurors really wanted to be lawyers (going so far as to emulate the lingo). Fact finding is one thing, pretending to be a lawyer cross-examining a witness is another. But no matter your insistence on asking the question, you can’t out-smart the actual attorneys. If a jurors did step into a line of questioning that was prohibited, the ADA would cut the juror off mid-question, or add limiting instructions if the witness answered. Sometimes they might even rephrase the question appropriately. I got the feeling the ADA’s were reluctant to step in unless there are actual legal consequences, as they are in fact trying to get an indictment from us (and successfully prosecuting cases is how they keep their job).
But lest we forget, prosecutors did not really exist until the late 19th century, so investigations were historically handled solely by the grand jury; there wasn’t anyone to moderate questioning, for which the laws present nowadays wouldn’t have even existed back then. The idea of the investigation belonging to the grand jury has carried through to today, for example, in the lingo, and in subpoena power. Some ADA’s would introduce their cases with the line “this grand jury is investigating...”, and as mentioned previously, the DA’s office sends out subpoenas on behalf of the grand jury (and it all has to go into evidence, on-record).
Before our first month was complete, there was already chatter about cases going on long after probable cause had been established. The jury was ready to vote, but the ADA was still presenting evidence and bringing in witnesses. It’s a bit frustrating, but there’s a couple of reasons for this. Firstly, after an indictment, it can take a year or more before the case goes to trial; for uncooperative or reluctant witnesses (which always made me feel incredibly uncomfortable) this is plenty of time to disappear. Subpoenaing them to the grand jury gets the testimony on-record early in the investigation. Secondly, one ADA explained that although we may believe a case is open-and-shut, as a defense lawyer they would have no trouble going to trial (which also begs the question of what we’re not hearing), so they’re simply being thorough.
When you’re hearing 95 cases spread over 10 weeks you understand how little time you have to churn through felony cases, so it makes logistical and economical sense to reduce something like marijuana possession to a civil offense.11 Not only does it avoid costly, protracted cases, but also removes an element from the judicial system that unfairly targets blacks.12 And although I strongly believe in more restrictive gun laws, I did question the “war on guns”, as it were, on the basis that even though the problem is obviously prolific and dangerous, young black males made up a large majority of our firearm cases, and the punishments don’t seem to serve as a deterrent. I believe incentive-based programs, as alternatives to locking up the poor and disadvantaged, would largely benefit society. I fear the current model only ends up destroying lives and families just as our war on drugs has.
There’s a constant push and pull between personal convictions and simply weighing the charges as they pertain to the law. But I’d be lying if I said the thought of purposely withholding a vote because I didn’t agree with the charge, or manner of the charge, never occurred to me. In fact I ruminated specifically on what might happen if the entire grand jury began returning no bills on entire swaths of cases. Could you convince enough people that something was so fundamentally broken as to not even bring charges against someone? Would it change anything? Ultimately I put my feelings aside, and determined to keep to the legal instructions we were given.
The very first instruction we were given was on finding reasonable doubt. We were a grand jury, and thus not deliberating on guilt or innocence. But when you’re dealing with murder, rape, and the most heinous acts of criminal behavior, that very notion, coupled with strong personal convictions, will always pervade the discussion despite any instructions you’re given. But just because we might return a true bill, doesn’t mean the person will be found guilty. The grand jury is just one cog in the justice machine; you have to remember that our system is built on the theory of innocent until proven guilty, and trust the other cogs are doing their job. Coincidentally, the Serial podcast, highlighting exactly these issues, landed smack in the middle of my service.
Listening to the story of a man who may have been wrongfully convicted made me sharply aware that sometimes the justice system does fail. Emotions run hot during investigations and trials, defense lawyers can be predatory, prosecutors focused solely on convictions instead of justice, detectives botch investigations, and exculpatory witnesses don’t always make it to trial. Innocent people have gone to jail, or worse, executed.13 We’re lead to believe that there are checks and balances in the process to prevent this kind of injustice, but if that were the case, we wouldn’t need organizations like Project Innocence. I’ve heard it argued that wrongful convictions are better than letting off a guilty party, but I think that’s hogwash.
It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, "whether I do good or whether I do evil is immaterial, for innocence itself is no protection," and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.
If by this point I needed some reassurance, I got it when the Suffolk County DA, Don Conley, dropped by in early December to speak to us. His visit was mostly to say thank you (for the service, but also if you happened to vote for him), and give us a little history about his office. He reassured us that his prosecutors work diligently to avoid putting individuals and families through the process of a trial if they’re not absolutely sure they have the right person. In the past, a case brought in front of a grand jury would be a expeditious affair, with the minimum amount of evidence presented to get the indictment. Nowadays it is a much more involved process, in part to avoid wrongful convictions, which were a problem prior to his tenure. Since then, no accusations of wrongful convictions had been brought.
Being Part of the Process
What I think gets overlooked, is that by virtue of the grand jury being codified in our Bill of Rights, society explicitly trusts us that justice will play out fairly and accordingly. Before my own group began our sitting in October, barely any of us had any specific knowledge of grand jury investigations. Granted they’re secret proceedings (for many reasons, one being that some are active police investigations), but I never read the news thinking about how the grand jury process was playing out, or the actual trial process for that matter—just that the lawyers and jurors involved were meting out justice.
While I was learning the full function of a grand jury, a lot of other folks I spoke to professed ignorance of the process as well. But as it happened, two important events brought grand juries to the forefront of the national conversation: Michael Brown in Ferguson and Eric Garner in New York. In both cases, the grand juries failing to indict despite the incredibly low bar of probable cause. We had at least one case with far less going for it than either the Brown or Garner case, but a true bill was still returned. By many accounts, grand juries were used as mini-trials in both of these cases, and spawned a myriad of debates on the grand jury process.
In a 1985 New York Daily News interview, Chief Judge Sol Wachtler remarked that a prosecutor could persuade a grand jury to "indict a ham sandwich".14 An optimist might say that prosecutors come to grand juries prepared with the relevant evidence, showing probable cause and getting the deserved indictment. A pessimist might point out that the defense very rarely has any involvement at this phase (although not all of the evidence we hear is admissible at trial, e.g. hearsay). As a matter of fact, the target of an investigation came in all of one time. If you’re keeping track at home, that’s 1% of the cases we heard, and we still indicted. As I’ve heard it said, the grand jury really is the prosecutor’s playground.
One of the questions raised has been whether or not grand juries should even exist.15 On the state level, sometimes they don’t. The US is only one of a few countries to use the process, but it does play a role as an investigative body for checking prosecutors, submitting evidence, and taking testimony. All of which could theoretically be reworked, albeit never overnight. After mulling it over for some time, I do come down in favor of abolishing the grand jury, for the following reasons: the extra time it adds to the process (which flies in the face of the right to a speedy trial), the costs in materials and man hours associated with essentially doing two trials, and that government institutions have replaced the original reasons for having a grand jury.
Thanks to the Massachusetts red books I became much more involved in politics since moving to Boston in 2011. It certainly encouraged me to have a larger role in the political process, local and nationally. (Unfortunately there doesn’t seem to be a shared sentiment among other bay staters.) Just living in a city the size of Boston, with so much history, so much academia, you’re bombarded daily with public forums on a vast amount of topics (e.g. urban development, public schools, casinos, crime prevention), or even meta-topics (e.g. anti-Olympics). Neighborhood committees exist in plenty, and entry barriers can be low. This is to say, opportunities exist abound to participate in government and enact change you want to see—and you don’t have to sit in a grand jury for three months to get it.
Rendering A Verdict
By the beginning of December we had been sitting for seven weeks, and served a total of 29 days. At that point Stockholm’s Syndrome started to set in. With only a couple of weeks left I wanted to vote the long-running cases. We had voted plenty of times on the smaller cases and I was comfortable with our duties and responsibilities, so I was eager to see the process play out as the cases would become public once they left the grand jury. A few completed cases had already trickled into the news, and now I could actually point them out to friends and family. In truth it was a bit of a rush—you’re in a position of power knowing details about cases that had been shielded from the public eye for so long.
But at the same time it had also begun to take a toll on me. Several other jurors also noted that, like myself, they were exhausted by the end of what was technically a short day (we frequently left by 3:30), and would often find themselves going to bed much earlier than normal. My morning routine was certainly upended: sometimes for the better (healthier eating habits), sometimes for the worse (I could no longer walk to work), sometimes annoyingly so (get on the train early to avoid the crowd and end up downtown 30 minutes early, or get on the train “on time” and get downtown with hardly any time to spare). Suffice to say I was ready to get back to life as usual.
We finally wrapped up on December 18th with a pizza party courtesy of the DA’s office, and a self-funded trip to the bar to socialize and say our goodbyes. I had my ups and downs with my fellow jurors, and while I cringed at a lot of what I heard in that room (from all sides), at the same time we all shared a rare experience together. As a microcosm of Boston itself, it was particularly enlightening to me as a recent newcomer to not only the city, but a city in general, having spent most of my life in smaller suburbs. Regardless of how I feel now, I can at least take the experience with me for the rest of my life.