Lost grandeur of the grand jury

Jenna Orkin

Free at last!
 
It’s sixteen months since I was placed on a federal grand jury which, I soon learned, is as hard to get off of as a regular jury is to get on.
 
And not for want of trying. But a panicked Google search after the summons arrived yielded discouraging results: 

“Answer the judge’s questions truthfully,” recommended one veteran, “and wet your pants.”
 
While many jurors are soon released because their business is suffering or for some other hardship, stories also circulated of people who were denied exemptions even if a parent was seriously ill. One woman we heard about, who’d already served two years in another jurisdiction, told the court that she would visit her father in the hospital regardless of their policy.
 
“We can send the marshals after you,” the court replied. She went anyway and they didn’t follow through on the threat.
I had no pressing excuse and so spent one lunch hour trying to escape the afternoon session by scouring Chinatown in vain for the fruit, durian. The smell is reputed to be so repugnant that in Singapore, it’s illegal to take it on the subway.
 
Some of us accepted our fate with the attitude that women used to be advised to adopt if they ever found themselves the victims of rape: Lie back and enjoy it.
 
Others expressed pride in serving their country reinforced by relief that said service didn’t involve risking their lives. But to me, the grand jury seemed to have morphed into another arm of an increasingly authoritarian state.
 
Unlike the more familiar trial jury, a grand jury only indicts, which is to say, accuses. Our job was simply to determine whether or not the prosecutor had enough evidence, or “probable cause,” to bring a case to trial.
 
Thus, the cliché that we served as both a sword and a shield. Sword, for obvious reasons: Without our approval, the prosecutor couldn’t proceed. On the other hand, supposedly, we prevented the prosecutor from getting carried away and embarking on personal or political vendettas.
 
However, in a world where the state has ever bigger guns at its disposal, the shield aspect has grown rusty to the point of obsolescence.
 
The only reference in our handbook to this function says that the grand jury “protect[s] citizens from unwarranted or inappropriate prosecutions.”
 
But how are we to protect our fellow citizens if the only entity providing information to us is the prosecutor?
It’s true that the target of investigation is allowed to appear at grand jury proceedings unless, of course, he’s considered a flight risk in which case he probably hasn’t been informed of them. But no one ever did.
 
Into the resulting vacuum rushed a flood of damning evidence. Or a trickle; since we only heard one side of the story, it hardly mattered. In the absence of contradiction, present the account of only one government official (or even, though more rarely, one lay witness,) and tada! You have your probable cause.
 
For this among other reasons, “[s]ome lower federal courts . . . express concern that the grand jury is used as a ‘pawn’ or ‘mere tool’ of the prosecution.”
 
For behind the official account, there always lurked the question: How was it obtained?
 
How often were we told by Special Agents of one three-letter agency or another (no agents who testified to us were ever ordinary) of targets who, for reasons that remained unclear, “waived [their] Miranda rights?” What were the circumstances of such inexplicable cooperation with law enforcement when “anything you say may be used against you?”
 
Grand jury protocol required us not to worry our pretty heads about that. And despite headline news of police misconduct from Ferguson to Eric Garner and Tamir Rice; and despite the fact that “[t]he Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000,” by and large, we didn’t.
 
A series of cases from United States v. Phillips Petroleum Co. in 1977 to the Supreme Court case, United States v. Williams in 1992, hold the prosecutor responsible for divulging exculpatory evidence in various situations. However, on the assumption that any untoward behavior on the part of federal or local officials would all come out in the wash, i.e., at trial, we invariably slapped another ham sandwich with what was, after all, “only” an indictment.
 
Yet “once a defendant has been indicted by the grand jury, the courts have only limited ability to dismiss the indictment for prosecutorial misconduct.”
 
In other words, we operated on the premise: Let the target’s defense attorney deal with any constitutional violations, although it probably won’t work.
 
A corollary of this policy is that we were also not informed about forfeiture allegations. Thus we carried on in blissful ignorance of the fact that according to the Cato Institute, the federal government was given a D grade for its forfeiture laws and “other measures of abuse.”
 
Unlike a trial jury, except when we were hearing evidence for a case about to hit the papers, we were under no constraints to avoid the media or Google searches of any subject we might fancy. And I sometimes took advantage of this respite from an atmosphere that was otherwise so hermetically sealed as to rival that of the Vatican. But here’s the rub: Whatever we might find, we couldn’t share with our fellow jurors. And since grand jury proceedings are nothing if not secret, let’s just say, I learned that the hard way.
 
If we wanted to “raise an issue” of, for instance, possible irregularities in official behavior, we were supposed to take it up separately with the attorney in the case.
 
You can imagine scenarios where such a rule might not serve the public interest. If there’s reputable evidence that a witness may have twisted the facts, isn’t reporting solely to the prosecutor a tad like informing the fox how much the farmer might know about his modus operandi?
 
The ambivalence of this instruction is also a head-scratcher. If it’s OK for one juror to possess information, why not the others?
 
But the shield function is not the only aspect of grand juries which seems to have become history.
 
Deriving from the British court system, during colonial times, the grand jury protected residents from royal persecution. It’s this background that led to the inclusion of the grand jury clause into the Constitution. Following independence, grand juries were also supposed to serve as eyes and ears in their own neighborhoods (some of us commuted two hours each way from Westchester) suggesting cases for the prosecutor to investigate. But they not only extended the reach of the prosecutor; they also acted independently. Thus it was a grand jury that used its clout to expose the alliance between Tammany Hall and mobster Dutch Schultz.
 
These days, they don’t talk about that in the edifying videos they show you before you start your service; the ones that are supposed to make you feel as though the founding fathers are smiling down upon you benevolently like patron saints of patriotism. And they certainly don’t instruct you on your ability, even your duty, to guide prosecutorial discretion. This vital function, too, seems to be considered passé.
 
Yet it’s the true elephant in the living-room. For the pursuit of street hoods, however wicked they may be, pales in comparison to the massive criminal enterprises which elude prosecution or severe punishment. To cite only two of many examples: Why did the SEC ignore for so long the warnings of Harry Markopoulos about Bernard Madoff? One of their number even wound up marrying Madoff’s niece. And why did UBS get off with mere probation for rigging a $5 trillion-a-day foreign exchange market?
 
We are living the truism: Those who do not know history are condemned to repeat it.
 
I called the jury office before publishing this article. While in communication with an unnamed attorney, the long-suffering clerk reported that although I had the right of free speech, they “didn’t encourage” me to publish the article because of “the secrecy surrounding the grand jury.” What’s the radius of that “surrounding” circle of secrecy? If it extends beyond the details of particular cases to the actual process, then for whose benefit does it exist? I laid out the misgivings expressed in the article and asked if, apart from “discouraging” me, the prosecutor’s office knew of any law that publication would violate. The clerk repeated the attorney’s generality and asked for my name and number, which I gave her. No one followed up.
 
As Stalin was supposed to have said, (apparently the quotation is false,) “One death is a tragedy; a million is a statistic.” As long as we focus on the trees, (the corner drug dealer, the illegal immigrant et al.) the toxic forest will be permitted to continue to grow undisturbed.