Thirty Days on the Grand Jury

The Torment of Secrecy

by Edward Jay Epstein

Bringing the proverbial ham sandwich to the Grand Jury to test the competency of the prosecutors

On Monday, November 6, 2000, I, along with twenty-two others, picked by lot, were sworn in as a New York State's Grand Jury. The tenure, one month.

The Grand Jury is an inquisitional rather than a judicial body. It determines whether felony crimes have been committed in New York and, if so, whether there is sufficient evidence to bring suspects to trial. Before anyone can be brought to trial on a felony charge in New York, he must be indicted by a Grand Jury. Unlike any other public body in American society, the Grand Jury's work is classified an eternal secret. Even after its cases are closed, and all its principal witnesses and targets dead, the inquisition cannot be disclosed to the public (unless by permission of the court itself— as in the Potus-Lewinsky Affair).

The Grand Jury originated in twelfth-century England as a cat's paw of the Crown. Through it, the King's trusted knights could arrange to imprison the less trusted knights. Its secrecy was crucial to its mission: if knights discovered they were the target of this star chamber jury, they could flee the realm, or worse, take up arms against the crown. Its role changed when knights got rights in the thirteenth century in the form of the Magna Carta. The Grand Jury, not the King's sheriffs, was given the sole right of indictment, making it a shield against the arbitrary power of the Crown. Under the Magna Carta, knights had to be first indicted by their peers before they could be brought to trial by the crown. Skipping ahead several hundred years, this protection was transplanted by colonialists to America and put into the Bill of Rights, which guarantees "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." Early in the twentieth century, Judge Learned Hand still could describe the Grand Jury as the "voice of the community." In theory, it remains an autonomous power center. It has virtually unlimited power to probe any subject of concern. It could, for example, launch a secret inquisition into election abuses, hospital practices or even the visual abuse of runway models at fashion shows. And, to this end, it can issue subpoenas witnesses, their records and other evidence. It can also grant immunity and publish expository reports. It can even get rid of the district attorney and other court officers and become a runaway grand jury. The last runaway Grand Jury of note, however, was in the nineteen-thirties when a Grand Jury barred the D.A. Thomas E. Dewey from its chambers and conducted its own investigation of organized crime .

Untamed Grand Juries are, alas, history. Nowadays, it meets in a venue more reminiscent of a high school homeroom than a star chamber. There are four rows, with 23 numbered seats, facing a desk. The number of the seat provides the Grand Juror's alias (Grand Juror #1, Grand Juror #2, etc.) The Court, by lot, selects one as foreperson who is responsible for swearing in witnesses and pressing the buzzer, which is its connection with the outside world. The only other people allowed in the room are witnesses, district attorneys, stenographers and a court clerk who handles administrative chores (such as telling the Grand Jurors when they may go). The cases, according to the estimate of one experienced district attorney, usually take between ten and fifteen minutes. The prosecutor comes into the room, introduces himself, identifies the witnesses he will be calling, and the theory under which he will asks for indictments. Then, one at a time, he brings in and questions the witnesses. In most instances, the witnesses are police officers, who are led through more or less standard scripts. Assistant District Attorney Bob Kay, whose judicial panel reviewed the activities of grand juries, revealed on the Internet what a Grand Jury hears in a typical textbook "B&B"(buy and bust) narcotics case. Two witnesses appear.

The first is an undercover cop, who says:

"My name is undercover officer badge number 1243. On this date and time I approached an individual who I referred to as ‘JD Red Cap' [since at the time of the transaction the officer does not usually know the name of the defendant, the officer refers to that person as JD, for John Doe]. I had a drug related conversation with him. He showed me some tin foil packets of what I believed to be cocaine. I exchanged a certain amount of United States Currency for the tin foils. I later saw JD Red Cap in the precinct under arrest and I learned his name to be..... I sent the tin foil packets to the lab."

Then comes the second witness, the arresting officer, who says:

"I placed someone under arrest identified to me by UC Officer 1243 as JD Red Cap. Upon arresting him I learned his name to be ..... I found an additional 12 tin foil packets of cocaine on his person. I sent the tin foil packets to the lab".

Then a lab report, though hearsay, is introduced into evidence, and, based on this script, the grand jury is expected to charge the defendant with three counts— felony sale, possession with intent to sell and simple possession. The defendant, if indicted and could get 20 years in prison. Such B&B stings, often involving only a $10 sale, account for about 40 percent of Grand Jury cases.

There are many variations of this boiler-plate script for other felonies, but they also generally depend on the testimony of one or two policemen. After presenting his prosecutorial brief, the district attorney in the guise of thee Grand Jury's impartial legal advisor, explains how the law supports the case he has just presented. He and the stenographer then depart, leaving the grand jury to deliberate in secret.

Even in highly complex cases, involving multiple defendants and multiple counts, a Grand Jury can usually reach its decision in a matter of minutes. To expedite the rush to judgment, the vote can be as a "batch" rather than as individual charges. After 12 hands---a majority---go up, the buzzer is sounded, the clerk picks up the paperwork and then, through the revolving door of justice, comes another prosecutor (or sometimes the same one) with other police witnesses (or sometimes the same ones) who then conduct another ten-minute mini-trial. Despite the similarity of the scripts, and repetition of the actors, it is, at least for the Grand Jurors, the ultimate equivalent of a TV reality show. Instead of commercial interruptions, other DA's 30 second spot appearances, announcing for the stenographer's record, that they are opening up some unrelated investigation which might not be brought before that Grand Jury. But, even with these interruptions, it is possible for the Grand Jury to dispose of four or more defendants in an hour.

Almost all these presentations result in a slam-dunk wins for the prosecutors. In 3,750 recent cases, according to an analysis provided by prosecutor Kay, 91% resulted in indictments or the pre-arranged disposition requested by the prosecutor, and 2% were transferred to other jurisdictions. In the remaining 7%, many, if not all, were "withdrawn" at the request of the prosecutor because of a plea bargain deal, guilty plea or other circumstance. The prosecution's remarkable success rate was no accident. As Sol Wachtler, the former Chief Judge of the New York State Court of Appeals, observed (before he himself was indicted by a Grand Jury), "Even a modestly competent district attorney can get a grand jury to indict a ham sandwich."

What shrink-wraps the fate of the proverbial ham sandwich, and almost every defendant, is the Grand Jury system itself. It essentially stacks the deck in favor of the prosecutor. To begin with, the Grand Jury rarely, if ever, hears a defense. The defendant himself usually does not appear because, to do so, he must waives his constitutional right against self-incrimination. Nor can the defendant's attorney present a defense. The prosecutor thus exclusively runs the show. And he is not required to provide any exculpatory evidence. If, for instance, there are a number of civilian witnesses whose accounts contradict the police witnesses, the Grand Jury need never know that they exist. Similarly, if a police search revealed that none of the marked money was actually found on the person accused of selling drugs, the Grand Jury need not be told, and any discussions of the search can be pre-emptively cut off.

The prosecutor, acting as the sole arbiter of "relevance," can indeed exclude whatever weakens his case as "irrelevant." As a result, Grand juries hear only a fraction of the potential evidence of what occurred—and not of all of this is direct evidence. According to special rules of evidence for a Grand Jury, the prosecutor can introduce hearsay evidence, such as the previously mentioned lab reports. These tests need even be performed at the time of the testimony of witnesses. They can be added, at a later date. Nor do Grand Jurors have the right to examine this evidence if the prosecutor deems it contains secret information, such as the undercover policeman's name. And since there is no non-hearsay witness for this kind of evidence, the Grand Jury cannot, in any case, evaluate its provenance.

More importantly, even though the Grand Jury, through its inquisitory powers, is supposed to be the "exclusive judge of the facts", there is a Catch-22. It is not allowed to directly question witnesses. When a grand juror wants to ask a question, he must call over the prosecutor, and ask him to relay his question to the witness. The prosecutor may ignore or disregard the question if he judges it irrelevant. Prosecutors, in other words, are not obliged to ask Grand Jurors questions that may elicit answers that confuse their case with what they consider irrelevant information. Since they, and they alone, are the judge of what is relevant, the supposedly-independent inquisition does not have independent means to question the prosecution's case.

And, even if it could question the evidence, it has to apply the law as it is explained by its "legal advisor," who is also the prosecutor. He says what constitutes a crime, what inferences may be made from circumstances and what special meanings are put on highly-nuanced and interdependent terms like "possession," "agency," "acting," ""knowingly," "willfully," " weight," "aided" and "sale." Not only are these definitions given in an oral briefing, but that briefing may have occurred days, or even weeks, before the case. Unless the Grand Jury asks that the briefing be repeated, they must rely on their memory.

How can Grand Jurors who hears only one side of a case, and lacks the independent ability to question it, and who may not even recall the exact phrasing of an unfamiliar legal code, render a judgment in a few minutes? One insight may be found in the work on small group behavior done by the sociologist Solomon Asch, who found in his Asch Conformity Test, that people in a small group, even if they are unsure of an answer, often raise their hands just to conform to other hands raised by the group. In any cases, hands go up on a Grand Jury.

But why then the torture of secrecy. Who does it protect? Of course, in bygone days, grand juror knights may have had to keep secret their star chamber investigations of fellow knights to prevent them from fleeing or tilting their lances at them. But nowadays almost all grand jury defendants already know they are targets. Indeed, most have been arrested by the police. And, if not, they have received notification that their case is coming before a grand jury (in case they want to wave their immunity and appear). So it is not a secret for them. Nor can the concern be protecting their sterling reputations since when they are busted, they have to do their perp walk in front of the media. The shroud of secrecy also hardly seems necessary to protect grand jury witnesses, since they are almost all police officers and other officials whose job it is to testify in open court. ( Undercover cops, in any case, keep their identity secret even from the Grand Jury.) The other civilian witnesses are almost invariably the accuser who again must appear in open court since defendants have a constitutional right to confront and cross-examine their accusers at the trial. If some circumstances required the protection of an identity of a witness, that one in a blue moon case could always be kept secret. The real reason for the secrecy, as far as I can see, is to maintain the myth of the Grand Jury and, by doing so. hide the extent to which it serves as camouflage for the prosecutorial engine. I of course cannot disclose anything about the secret machinations of the grand jury I served on for a month except to say that if Judge Wachtler's assessment overreached in any way, it was to assume that even modest competency was needed for a prosecutor to get his ham sandwich put away.