Changing Places: A Former Prosecutor on the Grand Jury

I thought I knew about grand juries. After all, I had worked closely with them when serving as a federal prosecutor during the height of New York City’s crime wave in the 1990s.

They were—in a word—reliable. Though I never sought to indict a ham sandwich, grand juries generally did what prosecutors wanted: they issued indictments on charges that were sufficiently grounded in both law and evidence.

But in recent years, I began to question their role.

First, as I gained exposure to criminal justice systems in other countries, I came to appreciate how unusual grand juries are. Indeed, unique. Although created in England centuries ago as a safeguard against the arbitrary exercise of royal power, and introduced to a number of British colonies, grand juries today have been discontinued almost everywhere but in the United States.

Then too, over the past several months, as public attention focused on controversial decisions not to indict police officers in Staten Island and Ferguson, Missouri, my interest in grand juries was newly reawakened.

Last month, when I walked into a courthouse in downtown Brooklyn and discovered that I would be a grand juror for the next two weeks, I was surprised, but intrigued.

In the end, I learned more than I had anticipated. I cannot speak about the specifics of any individual case, but am prompted to reflect briefly on the process in general.

The grand jury is a continuing experiment in democracy—one of the very few occasions when citizens of the United States are made to do something simply because of their shared membership in the political community. And unlike paying taxes—a rather solitary affair—a grand jury is consciously social, interactive, deliberative.

Twenty-three citizens from different walks of life come together to decide whether probable cause exists to believe one or more persons committed a felony offense. Though grand juries do not opine on guilt beyond a reasonable doubt—that’s for trial juries—they have a weighty and important responsibility. By and large, I found, people take it seriously.

Grand jury service is also, for the most part, rewarding. As jurors, my colleagues vigorously and conscientiously debated the evidence (“I heard the witness say …”; “Do you really think it credible that he would have done that?”; “I am trying to see your point here, but there is just not enough evidence”; “Could you please bring us something more convincing?”). In between case presentations, we engaged in chit-chat about our personal and professional lives, and tendered off-the-cuff evaluations of the various prosecutors who appeared before us (one was “patient and helpful”; another was “trying his best, I’m sure;” a third dressed well but “spoke way too fast.”). Even the one or two jurors who dozed off at times were considerate enough not to snore.

Some of the most enjoyable moments involved routine engagements with seasoned clerks, security officers, and court reporters who have seen it all and are fazed by nothing. Their nonchalant acceptance of the unpredictable diversity of humanity walking through the door on any given day offered a comforting contrast with my own distress at seeing and hearing witnesses who had suffered losses physical, personal, and material.

By the end of my first week, I found myself growing strangely attached to the place. At night, I recalled with fondness the gruff, friendly greeting of a police officer manning a ground-floor security machine after a 15-minute wait in the cold; the smell of lunchtime peanut butter and jelly in the cavernous room where giant video screens make Albany—Albany!—look good and describe the history of the grand jury; and, perhaps most unexpected, a tangible sense of camaraderie with fellow jurors grounded in our common experience carrying out a solemn civic duty.

Not surprisingly, grand jurors don’t always agree—on what they have heard, what the facts are, or even the charges. And therein lies a problem. If grand juries embody our commitment to democratic practice, they are less consistently successful at delivering justice. In some ways, they are woefully inefficient.

At least in New York State, grand jurors may not be given anything in writing. Though jurors can take handwritten notes, each Assistant District Attorney is required to state—and, upon request, restate—the blackletter governing law, but may not provide jurors with a written definition of grand larceny or murder or any other crime. Nor may the jurors receive a list of the charges at issue. They are expected to write them down as best they can. In a case of one or two counts, this is not too difficult. But when the prosecution presents 10 or more charges, it’s a recipe for confusion. 

Things get even more complicated, when the evidence is presented—as it often must be—in pieces, over the course of several days, interspersed with testimony from several other cases. Most prosecutors did their best to keep us on track, while reminding us—in the rote formula they endlessly repeat—that “it is your [i.e., the grand jury’s] recollection that controls, but here’s what I recall the witness said ….” Even so, distinguishing among different charges in different cases can be a challenge. Though the end result is (at least in my limited experience) generally correct, the process of getting there seems unnecessarily messy.

Then there are questions of gender, race, and class.

Crime may be down overall, but, at least as judged by their appearance before the grand jury, acts of domestic violence are a disturbingly frequent occurrence in contemporary New York. I was struck, not just by the brutality of treatment alleged—rape, beating, sexual assault, strangulation—but also by the courage of women who went out of their way to testify in public before 23 strangers about the most intimate details of their victimization at the hands of men they already knew. 

Finally, the grand jury is a window onto a criminal justice system that, like the society of which it is a part, is racially and economically stratified. For whatever reason, our jury was predominantly white. By contrast, the vast majority of the victims, witnesses, and suspects—civilian and law enforcement—who appeared during my two weeks were persons of color. Many (apart from the cops) were economically struggling. Their lives were not easy, or so it seemed from the cautious, halting gait of some who walked to the witness stand, the pained faces, tattered clothing, the flashes of hurt and anger as an incident was recounted.

Having seen first-hand how the grand jury functions, I came away convinced that this ancient mechanism merits a rethink. Involving lay citizens in the administration of justice is a noble aim. We should consider how to do that more efficiently.

On my first day in the courthouse, before I was selected to serve, I overheard a clerk advise someone how to break the news to an employer that 10 work days were about to be lost: “Tell her it’s her problem.” The juror-to-be laughed. But the problem, I now understand, is all of ours.