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Grand Jury Thoughts [Uncertain Principles]

Thursday, October 20, 2016 9:49
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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 lat 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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