Grand Jury Days: My Depressing Summer

I want to thank Al for his kind introduction and both Al and Dan for their help in getting me up and running.  A variety of funny things happened on the way to this forum, but I am finally here, late to my own party.

It has been a long time, perhaps almost 50 years, since I last wrote about my summer at the beginning of a new school year.  I do not recall the content of those prior exercises, but I am fairly certain that my effort was half-hearted and the product unremarkable.  This time I am more motivated, and I hope that I have something worth sharing.

From the beginning of May until the end of August, I served on a Cuyahoga County, Ohio grand jury.  We met twice a week from 8:30 to between 4:00 and 5:30.  Our cases ran the gamut of felony charges, with drug offenses probably having the single largest share of the docket, accompanied by a broad array of property and other economic crimes, crimes of violence, and a variety of regulatory crimes ranging from environmental crimes to failure of registered sex offenders to give notice of a change of address.  On a typical day, we heard somewhere between twenty-five and forty cases, depending on the complexity of the cases and the number of cases continued either because laboratory reports or witnesses were unavailable.

I came to the task with a mind uncluttered by much knowledge of criminal law or criminal procedure.  Obviously, I knew something both from law school and from living in the world with my eyes open.  I do not teach either subject, however.  My clerkship exposed me to a variety of criminal law and criminal procedure issues, but that was long ago.  My brief experience in law practice gave me minimal additional exposure in a couple of pro bono matters.  I have written on military justice issues, including what is by today’s standard an incredibly long piece on a Vietnam War era court martial case involving an army dissenter.  I also sidle up to criminal law and policing issues in some of my teaching.  In federal courts, section 1983, Younger abstention, and most notably habeas are in the neighborhood.  In various iterations of teaching national security law I have done some teaching on search and seizure, the intricacies of FISA and the Patriot Act, and, once again, habeas.  On the whole, however, I am an accidental amateur in the field.  Knowing little, there was much for me to learn, and, perhaps, I was more likely not to take the “of course” statements of criminal law and procedure as matters of faith.

I will elaborate in future posts, but the experience was often interesting.  It was more or less invariably depressing.  They did not bring us happy stories (though from time to time, as in cases involving creative vandalism or particularly inept suspects, they brought us funny ones).  I had assumed that I would remember the distinct details of every homicide case, but by summer’s end we had seen enough death that I am not sure that I can recall all of the homicides in precise detail.  Other instances of shocking cruelty and disregard for others left our collective spirits sapped.  The police often presented domestic violence cases with photographs of the damage done.  The hardest cases involved the sexual exploitation and rape of children, especially those cases where the suspect was a close family member.

After I was selected to sit, I told a number of friends who are current or former public defenders or prosecutors how I would be spending my summer.  One of the public defenders told me that she was looking forward to hearing tales of prosecutorial misconduct.  Happily, I will disappoint her.  Though I have strong criticisms of criminal justice in Cleveland and Cuyahoga County, I did not witness rogue prosecutors misapplying the law.  Indeed, I liked the prosecutors and admired their professionalism.  The problems with criminal justice in Cuyahoga County, and I assume elsewhere in the U.S., are more systemic and thus more intractable.  They are of our collective making, not the result of misbehaving prosecutors.

What we do in the name of law is also depressing.  Most important, many of Ohio’s choices regarding what to treat as a felony are troubling.  I will return to this subject in a subsequent post.  Finally, while I came away with the belief that everyone involved in the grand jury process seemed to be working hard and in good faith in an effort to follow the dictates of the law and to do our jobs well, I grew increasingly disquieted by our output.  As stated above, I could not point to prosecutorial misconduct.  I was impressed by many of the police who presented cases to us, and seldom did I, or my fellow grand jurors, mistrust their account of events, though we sometimes thought their account incomplete and inadequate.  My fellow grand jurors clearly understood their task and took it seriously.  We were not ham-sandwich-indicting pushovers.  We asked questions, including skeptical, challenging ones.  We sent matters back for additional information and better explanations from the police.  We occasionally called witnesses, and we were not shy about no-billing.  Nevertheless, though I think we did our job well, I feel uneasy.  Then, after our term was up, I read Ta-Nehisi Coates’ article in the Atlantic about Daniel Patrick Moynihan, the Black family, and mass incarceration and the bottom fell out.

Over the next few weeks I will add a number of posts about my grand jury experience.  I wrestled for a while with the question of whether or not I should post on the subject.  As a novice in the field of criminal justice, I am certain that those who are familiar with the field will find some of my observations either naïve, or commonplace.  Nevertheless, when I did some exploring to see what has been written about grand juries, I discovered that because of rules of grand jury secrecy it is not much discussed.  I am hopeful that without violating the rules of grand jury secrecy, I can shed some light on how the institution operates.  The Faculty Lounge Visitor’s Guide, which instructs new bloggers, invokes Ralph Elison’s “injunction to African American newspaper editors to write as if the sheriff of their town is reading them.”  I am especially mindful of that advice.  One of my senior colleagues warned me that before my time a faculty member who served on the county grand jury could not curb his impulse to share tales of the grand jury with his students or any available listener (he also shared faculty salary information with those students).  At some point that faculty member found it expedient to leave town a couple of steps ahead of the County Sheriff who wanted to talk with him.  I have seen the inside of the Cuyahoga County Jail.  I am intent on remaining a non-resident.  I will therefore not give the details of any case that we heard, nor identify suspects or victims.  I will write about general observations.  I will not name my fellow grand jurors, or the prosecutors that we worked with.  The County Jail is overcrowded enough without me.

Comments

[public defender]

It’s not surprising that you didn’t see any prosecutorial misconduct. The way the rules are written, it’s almost impossible for a prosecutor to commit misconduct during the grand jury process. For example, it’s not misconduct if the prosecutor knowingly withholds compelling exculpatory evidence. That means a prosecutor can tell a one-sided story that bears little resemblance to what actually happened. If one witness saw X and one witness saw Y, the prosecutor can just choose which version of events supports the greatest charge and produce only that witness, knowing that the grand jury will never find out about witness Y. It’s also not misconduct to withhold pertinent legal information from you. That means they can just choose not to tell you that you can no bill a case based on your disagreement with the law even if there’s probable cause to indict. With respect to the few ways in which a prosecutor can actually commit misconduct -- for example, knowingly presenting false evidence -- you’d never know it.

You’re basically there like a lot of pieces of the criminal justice system: to give an unfair system the veneer of fairness.

[Bob Strassfeld]

Somehow, my response to public defender disappeared into the ether of the internet. I will try again, but try to keep it brief, since I will address a number of the issues he raises in subsequent posts.

I agree with public defender that given the ways that the rules are written, there is little reason for prosecutor misconduct. I disagree about some of the particulars.

As public defender suggests, we were never instructed on the availability of nullification by the prosecutors. Nevertheless, we knew that nullification was an option, and on at least two occasions we no-billed even though we were convinced that there was probable cause to believe that the suspect had committed the charged crime. We simply concluded that justice dictated a no-bill. More typically, our acts of nullification were individual, and thus ineffective. In those cases the issue was not that we did not consider nullification an option open to us, but fewer than three out of nine of us thought that justice dictated a no-bill. The problem wasn't that we lacked the knowledge that we could nullify. Instead, because we were in public defender's words, little pieces looking at other little pieces of a much larger whole, we lacked the knowledge that would tell us when and why to nullify.

I am not particularly troubled that we did not usually learn about exculpatory evidence. Ohio might have adopted a system of preliminary hearings, instead of reliance on a grand jury. I have no view about which system works better. I am inclined to think that the prosecutor's office was not interested in bringing us cases that they seriously doubted they could win, should the case go to trial, though I also imagine that it did want indictments in cases that it thought were underdeveloped but potentially winnable. I understand that there are reasons why a prosecutor might bring a lousy case to a grand jury, in which case she would have an incentive to present a one-sided case to hide its weakness. She might want the leverage of a felony indictment to extract testimony against co-conspirator, or she might unscrupulously use the leverage to obtain a plea bargain in a lousy case. I agree, that we do not know what was not presented to us, but nothing that I saw suggests that we were being manipulated in that way. Instead, there were times when the police officer's presentation of the case revealed that there was less to the case than the prosecutor expected, and she responded by removing unsupported charges or by signaling that we might no-bill.

My greater concern is that prosecutors may be inconsistent regarding the presentation of exculpatory evidence. We saw this in the presentation of evidence (including evidence that the prosecutor subsequently said he knew was false) to the Michael Brown grand jury, and there is reason to be concerned that the same is occurring here in Cuyahoga County in the Tamir Rice case. If exculpatory evidence only comes to the grand jury in instances of police misconduct and excessive force cases, we have a problem. I will have more to say on this matter in future posts.