Thank God for Grand Juries

By Phil Basso, Deputy Executive Director, APHSA VIEWS 6
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We thought that’s what the unjustly accused would be saying to us...

 

(This is part 7 of an ongoing series, Structural Inequities in the Criminal Justice System: A Personal Account.)

 

I think I speak for my entire grand jury when I say that we didn’t detect any conscious racial bias or disdain for the poor amongst the many prosecutors and law enforcement officers we encountered during our five weeks of service. In fact, we saw the same pain and empathy we were experiencing more often than we saw callousness and professional indifference. Given my own context in organizations and in life generally, I’ve always believed that people try to do their jobs with good intentions and with reasonable if not exceptional competence.

 

The “wakefulness” I now have, as relayed throughout this blog series, does not include a sense of some broad ugliness and darkness within these professions. However, what I did take away from grand jury duty was a fuller awareness of the strong motivation amongst the professionals we encountered to meet their own immediate and case-driven objectives, which were to secure a “yes” vote for the requested charges and an official indictment as efficiently as possible.

 

At one point a prosecutor who was getting to know us well said, “Thank God for grand juries.” Just like the statement, “Don’t think about what happens after your vote,” this one struck me as not quite what it seemed. Prosecutors know that a thoughtful grand jury will ask questions that help them think through their cases and address flaws in their arguments and evidence. But more important, grand jury votes—almost always affirmative—enable the targeted multi-count indictments to go on record and put the plea bargaining process in motion. Here are some of the specific examples of the things prosecutors say that reinforce my perspective:

 

“I’ve clearly established probable cause. Any questions before you vote?"

This was a commonly used device that prosecutors used on a lay jury to basically intimidate them into a “yes” vote. Prosecutors would almost invariably ask us this question, staring at us with keen readiness to argue down any thoughts of a “no” vote before we were left to the deliberation and voting tasks.

 

"You’ve seen enough evidence to determine probable cause.”

Grand juries technically can call additional witnesses or request additional evidence, yet we never once did so. Why? Because prosecutors were highly skilled in redirecting our requests into explanations and reinforcement that we were not a petit jury and only needed enough evidence to determine probable cause.

 

“You have 15 minutes and today is my deadline.”

On occasion prosecutors explained to us that a 100-day allowable period to secure an indictment on a case was expiring that very day or the next. Given our dockets and scheduled breaks and end times each day, we were regularly in a situation where we had to rush through deliberations and votes to support that process.

 

“So now that you’ve agreed to put your video interview on the record…"

Some prosecutors would ask victims to go back over their recorded testimony, to the point where they became upset in front of us. They would do this gently with a supportive tone but we often asked each other afterwards, “Why was that necessary when we could just read or watch what’s on the record?”   

 

“Oh, is that still on the screen?”

Again, some but not all prosecutors would leave upsetting pictures on a video or overhead screen for a few extra seconds while they searched their papers, making sure we were too upset to let anyone get away with the crime at hand.

 

“This is technically assault and kidnapping with a deadly weapon.”

The written laws and standards for things like assault and kidnapping can be “jacked up” by prosecutors, I think to add counts to indictments without them really being appropriate. We had a case where the accused allegedly grabbed and held a victim who was falling and we were told that this justified a kidnapping count.

 

“Danny.

This quote looks different than the others, right? For a contrasting example, one prosecutor actually explained both sides of the argument for indicting the accused before we voted on the case. He even shared what he thought the chances of conviction were in a petit jury trial. He went back over the facts of the case and answered our questions until we had none left.

 

As for the police officers we met, I found them to be reasonable, respectful, and diverse in their backgrounds (age, race, and gender). They were well-prepared for court and provided straightforward answers. The detectives we encountered were for the most part credible too. One or two of them quickly pushed back on some legitimate questions from our jury but I don’t know if it was to conceal a weakness in the case or just the result of having hectic and stressful jobs.

 

What was evident and troubling about law enforcement officers involved in our cases was how different their practices seemed to be in high-crime neighborhoods. Their approach appeared to be far less relational and much more task oriented than I’ve experienced when calling an officer or other emergency response professionals myself. Watching videotapes of crime scenes and victim and witness interviews, it was only when women and children were interviewed in sex-related crimes where we saw thoughtful, careful, and empathic interactions, and these were conducted by casework specialists.    

 

I used to trust the voice of criminal justice and emergency response professionals more than the people living in a given neighborhood. While I still respect these professionals and didn’t come away from jury duty more jaded about people’s conscious biases against the poor and minorities, I now understand that the “structural” elements of what happens—how work, policies, and procedures operate in reality—at times result in outcomes and impacts that may be expedient, and may seem normal but are actually unfair, inequitable, and in my view, unconstitutional. “Thank God for grand juries.” We thought that’s what the unjustly accused would be saying to us.

 

*This is part 7 of an ongoing series, Structural Inequities in the Criminal Justice System: A Personal Account. You can catch up here and check back every Friday for more.

 

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