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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.
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