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.
