The grand jury is one of the weirdest animals in criminal law. It’s pure theater, bread, and circus — at least when a defendant testifies. (That’s the only time I’m allowed in and can see what really happens.)
In New York, the grand jury meets in a room the size of a small seminar space in a community college. The jurors, some 20 plus of them, sit in rows facing a table behind which you and your client sit. There’s all sorts of preliminary formalities (waiving the rights against self-incrimination, swearing to tell the truth, stand up, sit down, stand up again, sit down again), then the prosecutor simply asks, “You’re here because you wanted to give testimony about what happened on such-and-such a date. What do you want to say?”
The defendant begins his story, usually very short, and when he’s done the real fun begins. The prosecutor, unfettered by the nuisance of rules of evidence or a judge weighing in on objections, plunges into a cross-examination so fierce, any time your client even peed on the sidewalk is fodder to show what a lying scumbag he is. You, the defense attorney, are merely permitted to sit there and watch the pummeling in silence.
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At the conclusion of the spectacle, the jurors are asked if they have any questions, and this is where the jurors channel Perry Mason and all who came after him. They raise their hands and ask questions from the trivial to the telling, whispering these questions to the prosecutor who then asks them to your client. “When was the first time you ever used crack?” “Why weren’t you taking your medication?” “When was the last time you saw a doctor?”
When finished, you and your client leave the room, and the jurors vote, up or down, right then and there. Riding on their decision — a “true bill” or “no true bill” — is the next many years of your client’s life.
Here’s the thing: the standard of proof is so low, yes, even a ham sandwich could be indicted. Occasionally, a client with a good story and a great manner persuades a grand jury that he really didn’t do what he was arrested for, but most often, he gets indicted.
Cops are a different story. Depending on where the grand jury is sitting (for example Staten Island vs. the Bronx), people want to believe them. They’re police officers held to a public trust. They protect the jurors themselves, for God’s sake.
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The prosecutors do not want to make police their adversaries. They rely on them too much and generally, conventional wisdom has it (at least among white people), that police are correct in whatever they do especially if the guy they arrest has a long criminal history.
It’s a tough call for any prosecutor’s office to indict a cop, and plaudits for the Baltimore prosecutor who moved forward so that a jury of 12 can ultimately decide whether the police are responsible for Freddie Gray’s death.
The prosecutors are pushed by various forces and events — who the chief prosecutor in that county is (their individual personality and political ambitions); the make up of the grand jury venire (are they people likely to consider a cop’s alleged misdeeds like they would any other’s); and the climate of the times (the Baltimore case comes on the heels of a series of police arrests which ended in the deaths of the arrestees, and Baltimore had reached the tipping point.)
Clear again (and a common theme in my columns), the prosecutor holds all the cards. They decide how they conduct their investigation, whether they present the case to the grand jury at all, and if they do, how they ask the questions of witnesses and the cop himself (should he testify). The tone and content of their questions clearly signal to jurors either skepticism or trust.
The grand jury is a secret proceeding where jurors are picked by the prosecutor’s office alone, subject to minimal judicial oversight, sworn to secrecy, and steered exclusively by whatever prosecutor happens to be presenting the case.
To have any kind of neutrality, especially in cases involving alleged police misconduct, it’s imperative that some oversight be exercised. Independent counsel could present the case. A referee or a judge could be present to make sure the proceeding is “neutral,” as it is with other defendants, before an indictment is voted. (Judges always look at grand jury minutes after a person is indicted, but by that point, very few have the courage to dismiss a standing indictment based on insufficiency of the evidence or prosecutorial misconduct.)
Prosecutors are too linked to police officers (see my prior column, “Videotaping Crime is Not Enough”) to exercise the neutrality needed in a grand jury proceeding.
More needs to be done. There’s far too much at stake when whole cities go up in flames due to perceived police misconduct not to make sure that when police are the alleged actors, some oversight of the grand jury is exercised.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.