Stair hall at Edward T. Gignoux U.S. Courthouse, Portland, Maine, November 2013 by Carol M. Highsmith for the General Services Administration (public domain)
We don’t know yet how quickly the U.S. Attorney offices across the country will abandon norms of prosecutorial conduct in service of the political or personal agenda of their new masters in Washington, D.C. and Mar-a-Lago. But if they do, we can be pretty confident that they will take care to cloak the new substance of justice in the old clothes of legal formalisms.
One of those formalism is the citizen grand jury, which is supposed to stand as a bulwark against over-zealous prosecutors. Unfortunately, they are completely ineffectual in that role because the good citizens who make up these panels don’t really understand their role and they really don’t have anyway of detecting when a prosecutor is going beyond his or her remit. There has always be more deference given to the requests for indictments made by the federal government than is safe in the new order.
If you should be seated, I hope you benefit from my experience.
I was a grand juror in the Federal District Court for the Northern District of California (centered in San Francisco) for 18 months in the mid-90s. I have no stories to tell about specific cases, some of them well known, others obscure, and some that went no further. Grand jurors are bound to secrecy by law.
Becoming a grand juror in federal court is relatively simple. All you need to do is register to vote, have a driver’s license or otherwise have a known address and you may, by luck of the draw, receive an invitation in the form of a summons, to join a couple of hundred other lucky contestants in a federal courtroom. There names will be drawn from a virtual hat and the contestant will be asked a series of questions
Are you a US citizen?
Do you reside in the District?
Can you speak English well enough to understand what I am saying?
Are you a convicted felon?
If, as most people do, you answer Yes, Yes, Yes, No, congratulations! You are a grand juror for the next 12-24 months, bound to gather with 22 other of your fellows at least once a week. As you might imagine, this results in a fairly diverse group of people, broadly representative of the population of the region who meet the qualifications. Your term may be extended if major investigations are pending in which your jury has heard testimony.
After a brief initial orientation, Assistant U.S. Attorneys (at least, I never saw the U.S. Attorney in the room) will come before you ask ask for one of three things (1) a subpoena, (2) hear the sworn testimony of a witness, or (3) an indictment.
A subpoena is generally a demand for documents in possession of a potential defendant or a third party, such as a bank. Testimony is either voluntary, by government agents to establish a factual basis for an indictment, or compelled for uncooperative witnesses who decline to volunteer information in interviews with investigators or prosecutors. These witnesses will often invoke their Fifth Amendment privilege again self-incrimination, as is their right. Despite elaborate instructions to the contrary, most of my co-jurors took that as an implicit acknowledgement of guilt. Witnesses are not allowed legal representation before the jury but can excuse themselves to consult with counsel lurking just outside the closed door. (Also, the proceedings are conducted excluding the public.) An indictment is based on the prosecutor’s ability to establish to the grand jury that probable cause exists to believe that a crime has been committed and that the person charged is guilty of that crime. This consists of the prosecutor explaining the “elements” of the crime (all the facts that the prosecution must establish for a conviction) and connection those elements to the evidence presented.
The prosecutor then withdraws to permit the jury to conduct its deliberations and to achieve a majority consensus, a process that generally took fewer then 3 minutes. The common rationale is that a defendant who is innocent has nothing to fear. As the only lawyer in the room, I would caution that for a defendant who cannot afford a trial lawyer, the inevitable result is a plea bargain, almost always resulting in jail time whether or not the defendant is guilty.
This brings us to the nub of the chestnut that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. The standard is miscalled “probable cause.” It should more plausibly be termed “plausible cuase” or passing the laugh test. This is a mere formality for which a grand jury is seldom required.
In the other two cases, however, there is some merit. Prosecutors should not, wily nily, be able to require defendants or third parties to produce evidence solely on their own say so. But the greatest role of the grand jury is to require the state to interrogate suspects and third parties in the presence of representations of the public, rather than chained to a chair under a bare light bulb.