Grand Jury Thoughts

As I've mentioned several times, I just finished a two-month sentence on a grand jury in Schenectady County (well, technically, I have to go back for one more day, because they didn't finish everything). I'm not allowed to talk about the details of the cases we heard, but I have some general thoughts about the process that I think are blog-safe.

Several people I've talked to about this who also did grand jury service at one point reported finding the experience more interesting than annoying; sadly, I can't say the same. I have an extremely low tolerance for people inconsiderately wasting my time, and large amounts of the process made me feel like I was being jerked around, which always makes my blood boil.

The fundamental issue, to me, has to do with respect for the people who are giving up their time to serve on the jury, and the court was frankly awful on this count. We were asked to report at 10am every day we were called in, but never once started before 10:15, and they never had any clear schedule for the day. On one occasion, we sat waiting in the jury room past 10:30 because two different attorneys each thought the other was presenting first, so neither one came in. On another occasion, an assistant DA rolled in at about 10:30 to start, and got a little huffy when told that he had to wait until some jurors came back from the bathroom.

Cases came and went with no explanation, sometimes with a week or more passing between parts of the same case-- on our final regular day last week, we couldn't come up with a solid count of how many open cases we have yet to wrap up. On a couple of occasions, they didn't even tell us they were done with a case for the day-- the ADA finished a witness, left the room as if to get the next witness, and a different ADA came in to start a different case.

It's remarkable how little effort it would take to fix that, too. The one ADA I ended up actually liking left a positive impression because he treated us like adults. When he started late, he apologized, and explained the delay (he'd had a meeting with a judge, or a witness showed up late), and when he took a break or was done for the day, he told us that, and explained why, and roughly what to expect in the future. It's not much more than basic courtesy, but its absence from the rest of the proceedings made it really stand out.

As for the process itself, I described it to some other people as "like being stuck in an all-day faculty meeting." In the same way that faculty meetings are often bogged down in silly procedural details, or derailed into old and long-running arguments, much of what goes on in the presentation of cases has absolutely nothing to do with the actual topic at hand and the people who are present.

For those not familiar with the quirks of the American legal system, "grand jury" is an intermediate step between investigation of a crime and the sort of jury trial that you see in movies and tv. The grand jury hears evidence only from the prosecution, not the defense, and the end result is not a conviction but an indictment, which indicates that the prosecution has enough evidence to justify proceeding to a regular jury trial. The standard is not "guilty beyond a reasonable doubt" but "reasonable cause to believe the offense was committed," and the vote of the grand jury does not need to be unanimous.

That's a really low bar to clear-- there's a lot of truth to the lawyer joke that a DA who wanted to could get a grand jury to indict a ham sandwich-- but despite that huge amounts of time were wasted on anticipating a defense that wasn't going to be presented to us. And a few of the cases involved massive overkill in establishing points that really weren't in any doubt. This is done not because it's necessary for the task the grand jury has, but (as far as I can tell) so they can impress the defense with the big list of witness and evidence they showed the grand jury when they sit down to make a plea deal.

There are also a bunch of ridiculous inefficiencies involved in the testimony, for basically historical reasons. The official record is produced by a stenographer who transcribes everything that's said, which means that even when they have photographs or documents, they have to go through this stupid dance of making the witness describe the picture in words so it ends up in the transcript. When photographs were difficult and expensive to duplicate that might've made sense, but these days, they're all digitized, and could easily be stored together with the electronic transcript.

The transcript format also forces a bunch of stupid redundancy, as each case needs to have a self-contained record. Which means that we had to re-establish the professional qualifications of the same handful of police officers over and over again. On one occasion, the same two officers testified in two different cases on the same day, and we had to go through the "How long have you been a police officer?" dance again, despite the fact that the officer in question had gone through the same story for the same grand jury fifteen minutes earlier.

I was also bothered a bit by the fact that the process explicitly emphasizes the least reliable forms of evidence available. Everything that comes in has to come from personal testimony of witnesses, often at a great remove from the events in question. We regularly had police witnesses admit they couldn't remember some detail of the case, whereupon they-- but not the jury-- would be shown the report they wrote at the time, to "refresh their memory." Which usually wound up with them essentially reading the report to us, taking five times as long as it would've if they just gave us the report to read.

This is not a knock on those officers, by the way-- these are busy people, who handle a lot of cases, and it's not unreasonable to be confused about the exact address of a call from months or years earlier. Those officers who confidently rattled off the exact details of the cases probably weren't doing so because they had exceptional memory ability, but because they had reviewed those very same reports before coming in to testify. But given the vast amount of research showing how memories shift over time, it's kind of farcical to go through this process at all-- if you ask me to pick which I trust more, I'm going with the report written at the time the events happened, not the personal recollection of the witness a long time later.

The ostensible reason for this emphasis on personal testimony is that having the witnesses there in person allows you to assess their credibility, but that's undermined by the process. In the absence of any kind of defense or cross-examination, everybody looks credible, particularly to the low standard needed to hand down an indictment. One of the few interesting ways to pass time during the duller bits of testimony was playing "If I were the defense attorney, how would I counter this?" And while I could see plenty of ways one might raise a "reasonable doubt" about the guilt of the accused, there was never anything that made me question whether there was "reasonable cause to believe" that the case being presented should go to trial.

So, in terms of the process, the net effect was probably a slight increase in my cynicism about the legal system. I suspect a trial jury would be a different and maybe more interesting experience, but this did not leave me with a particularly positive impression of the DA's office, or the general notion of grand juries. And it really emphasizes the awfulness of those high-profile cases (generally involving police misconduct, as in Ferguson, etc.) where a grand jury does not return an indictment.

As for the cases themselves, I can't discuss details, but they were mostly just depressing. We caught some fairly awful stuff, but for the most part, I was just reminded of the bit from Donald Westlake's Bad News, where a judge reflects that "It was his task in this life to acknowledge and then punish stupidity." The cases we heard were mostly sad stories about sad people making utterly terrible decisions. Some of them were bad enough to be kind of hilarious, but the cumulative effect was just sad.

A week or so into the term, I jokingly said on Twitter that my advice to anyone receiving a grand jury summons was to postpone it for the maximum period allowed, and during that period move to another state. That's exaggerated, of course-- I met some interesting people, and had some enjoyable conversations during the breaks-- but on the whole, I really can't recommend the experience.


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A week or so into the term, I jokingly said on Twitter that my advice to anyone receiving a grand jury summons was to postpone it for the maximum period allowed, and during that period move to another state.

Funnily enough, that was how I got out of regular jury duty in California. As an educator, I could postpone my summons for up to six months, so I switched it from the middle of the term to summer break, when I knew I wouldn't be teaching*. Sometime around spring term I found out I had a new job out of state, and that my jury duty would be two weeks before I moved. While my county just had me on call**, I was told by the clerk that I could definitely tell the court officials that I was leaving the state soon if I needed to come in.

* Yes, I am allowed to take time off to serve on a jury, but I'd rather not disrupt my students' lives if I don't have to.
** I could stay home, but was required to go to the courthouse on an hour's notice if they needed more jurors, and keep checking the web for updates on my status.

By Becca Stareyes (not verified) on 20 Oct 2016 #permalink

I have had trial jury (I believe the legal term is petit jury) experiences in two different states. I've never gone to deliberations: in the civil case in Florida the case was dismissed without prejudice on the motion of plaintiff's attorney, one of the two criminal cases I was on was settled by plea bargain before the trial began, and the in the other criminal case I turned out to be the alternate juror.

Before the trial begins you have to go through voir dire, a process that makes sure you are not unduly biased in either direction. For instance, if you know one of the parties, legal counsel, or witnesses in the case, that's generally grounds for keeping you off the jury. Or if you have been through an incident similar to the one at issue in the trial, you are usually excluded from the jury. Then the prosecution/plaintiff's counsel and defendant's counsel get to issue peremptory challenges: they can each boot a certain number of people off the jury for any reason, or no reason.

They're pretty good in my state about telling you ahead of time that you don't have to come in (because the case has been settled/pled out or something similar), but otherwise there isn't a whole lot of respect for the time of jurors and potential jurors. As with your experience, they don't always clearly explain the reasons for the delay. At least with petit jury duty you don't have to try cases in parallel--some states limit you to a maximum of one trial, and even in the state where I live (where you remain in the jury pool for the entire month) being selected for one case exempts you from selection for any other case that is scheduled to overlap with your case.

In the case where I turned out to be the alternate juror, the presiding judge invited me into his chambers when the jury was sent out to deliberate the verdict, and asked me my opinion of the case. The defense's claim was that the defendant was too drunk to satisfy the mental state requirements for six of the seven counts (counsel basically conceded the one charge for which drunkenness was not a defense), but I thought the prosecution showed the defendant knew what he was doing. I later heard from one of my fellow jurors, whom I happened to encounter around town, that said defendant was indeed convicted. I thought it was a nice touch for the judge to ask my opinion even though it turned out my opinion wasn't needed.

By Eric Lund (not verified) on 20 Oct 2016 #permalink

The grand jury involved basically none of the voir dire stuff-- if your number was called, and you were available during the two-month time period, you were on the panel. We never got asked our occupations or anything like that. They did ask at the start of each case if anybody knew any of the witnesses well enough that they would have trouble being impartial, and a few times we had people who did, and so recused themselves-- the panel has several extra jurors beyond what's needed for a quorum for just that reason.

Does the jury ask questions in this case or just passively listen? Is there any deliberation or do they just vote?

Grand jurors get to ask questions, though the ADA presenting the case has to approve the question, first. Which is also a little farcical, as the question would be asked right in front of the witness, who then had to wait for the ADA to say "You can answer that."

That right of first refusal limits any use of this to really probe the credibility of the witnesses testifying. It did somewhat inadvertently produce some funny moments, but that's about it.


I can respond to some of your points based upon my own experience, which although the same state, is probably somewhat different because of the volume we deal with. I am also conversant with Bronx County practices too:

One of the reasons that they are often unable to provide a clear agenda for the day is because NY state law imposes a deadline of six calendar days (including weekends) from arrest to have the jury return an indictment on at least one county per case to allow the state to retain the person in custody under bail. So the ADAs themselves are probably doing a made scramble to make sure that they can produce enough witnesses to make out a bare bones - legally sufficient - charge. No one has a schedule because its most likely first to arrive on whatever case is first to arrive on that case. In Kings County, you book GJ time in 15 minute increments, present the witness or lab or whatever, and then step out and let another ADA step in.

So the scattershot nature of the presentations has a lot to do with that. While the officer who made the arrest might be available on Tuesday, the lady who got robbed might nit be available until Wednesday and then we have to loop around back on Friday with the cop who obtained the surveillance video, for example. In my office, the GJ witness room on Monday mornings is literally like an ER. You got shot two days ago? You go in first. Your detective will testify later. Ma'am, your mail was stolen? Can you come back after 2:00 pm? The people with fresh wounds (and special victims) get priority, even if that means presenting different parts of the same case in a bewildering order,

That's the situation in cases in which the presentation follows an arrest; there are situations where the the filing of the indictment precedes arrest and provides the basis of the arrest warrant; since those cases are not being slapped together under a compressed time period, the presenting ADAs generally have the ability to schedule witnesses and concoct a road map and general theory (almost like a mini trial) of how it will flow logically and wind up at a semi-sensible conclusion. If you had any of those, you probably thought that the particular ADA was generally more on the ball than those catching custodial cases.

Another factor is that the cases in which the defendants are held in on bail get priority (that six day deadline) over defendants who were released on their own recognizance or posted bail set after arraignments. Again, as those prioritized witnesses appear, they get thrown before the GJ, in between, scheduled presentations without that deadline.

By RichMBoye (not verified) on 22 Oct 2016 #permalink

With respect to the redundant level of detail where people repeat what is being displayed in photos etc., I can say that even though when the judge inspects the GJ minutes for sufficiency, whatever exhibits were presented are also submitted. Nonetheless, we have had indictments kicked because a particular judge didn't find that the record was sufficiently clear with respect to a witnesses explanation of what a photograph showed, or who is doing what in a video (which have submitted and accompany the transcript). It's probably from an overabundance of caution that the ADA laboriously made people describe what is pretty obvious.,

By RichMBoye (not verified) on 22 Oct 2016 #permalink

Sorry about the typos. This comment box is really, really tiny on my iPad.

By RichMBoye (not verified) on 22 Oct 2016 #permalink

Obviously, I can't go into much detail about exactly what we heard, but cases where the six-day rule was coming into play were a small minority of what we heard. We had several cases that fell into that category-- including some awful stuff-- but a very solid majority of what we heard originated weeks if not months earlier. I was happy to cut them slack on the cases where they were genuinely scrambling to get stuff in, but we hardly saw any of those.

And, again, all it would take to make this less infuriating would be some explanation as to why they're doing what they're doing. The better ADA's did that ("This is a weird order, I know, but I'm presenting this witness first because he's on duty today, and needs to get back to work"), even with very recent cases. Most of the time we didn't get any introduction beyond "This is the people vs. Firstname Lastname. Please swear in the witness." That's disrespectful when the case is three days old, and it's downright insulting when the offense dates back six months or more.

I realize the ADA's are doing a hard job under tight constraints (though less hard and less constrained in Schenectady then NYC). I'm not asking for them to do anything impossible, just to show some basic courtesy to the people who are being massively inconvenienced by having to sit there and listen to these cases.