On the Grand Jury System

Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will. ~ Wood v. Georgia 370 U.S. 375.

The grand jury is an ancient institution. It emerged centuries ago in England, ostensibly to serve as a shield between the state and the individual, protecting the latter from unfounded criminal charges.
~Federal Grand Jury: A Guide to Law and Practice by Susan W. Brenner and Gregory G. Lockhart

In a bid to make prosecutors more accountable for their actions, Chief Judge Sol Wachtler has proposed that the state scrap the grand jury system of bringing criminal indictments.
Wachtler, who became the state’s top judge earlier this month, said district attorneys now have so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.”
~ “New top state judge: Abolish grand juries & let us decide” New York Daily News, January 31, 1985, pg. 3, By Marcia Kramer and Frank Lombardi

In May 2009 I was served notice that I had been chosen as a grand juror in Franklin County, Ohio.
There are two kinds of grand juries: the “special” grand jury and the “regular” grand jury. A special grand jury is an investigative arm of the prosecution — that is the kind of grand jury that most people are familiar with because we see them on the news. Barry Bonds and Scooter Libby got into trouble when they went before special grand juries. This is the body that one really does not want to lie to. People go to prison for lying to grand juries.
Special grand juries are the kind of grand juries that can become “runaway grand juries” like the Rocky Flats Grand Jury or the one that uncovered Murder, Inc. in New York.
Special grand juries are used by prosecutors because it is the only way that they can force a suspect to talk about a possible crime. In other words, the special grand jury

is an investigatory body charged with the responsibility of determining whether or not a crime has been committed. Unlike this Court, whose jurisdiction is predicated on a specific case or controversy, the grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush. “A grand jury investigation ‘is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.’ ” United States v. R. Enterprises, 498 U.S. 292 (quoting a bunch of other cases)

Regular grand juries, on the other hand, hear the ordinary felony cases that crowd the criminal justice system. Unfortunately for me, that is the grand jury service for which I was summoned.
Under the Ohio Constitution no person can be tried for a felony crime unless that person has been indicted by a grand jury. Back in 1851 when this particular article was written that was probably a good idea because there were not many felony crimes or criminals. That is no longer the case.
Spit on a cop and you can be charged with a felony in Ohio (Assault by bodily substance). Fail to pay child support and you are committing a felony. Write a bad check over a certain amount and you are committing a felony. You get the picture.
During my service we heard about 20 cases each day consisting of burglary, theft, receiving stolen property, robbery, counterfeiting (making up a bad check), and felony domestic violence. Over and over and over. The names have been changed, but the facts were the same. Occasionally we had an arson or white collar embezzlement or interesting kidnapping case (it’s not what you think — if you tell someone to stand still while you rob them with a gun you have restricted their liberty and are guilty of kidnapping), but for the most part it was people who “found” or “bought” a plasma TV for $50 from “some guy.” We all know that the person with the TV broke into someone’s house and stole it, but it is easier to prove that they received stolen property. If they are in possession of something that a reasonable person would think was stolen, then they have received stolen property. Plasma TVs don’t sell for $50, so a reasonable person is going to know that the TV is stolen. You would be surprised how many people think it is OK to rent a car for $20 from “some guy” they just met.
Unlike juries in criminal or civil trials there is no selection process for grand juries. If your name is pulled, you’re on the grand jury. Of course there are excuses for certain people and the service is not really that onerous.
When we were called in for orientation in May, we were told that this term of the grand jury would run from mid-May to mid-September. Each person not excused from service would be expected to serve for at least two weeks and we would be called in numerical order based on a random draw. If possible, people could serve as much time as they wanted to. The pay was $20 per day, and the grand jury would meet five times a week from about 9 a.m. until noon at the latest.
I was number 287 out of 350 original jurors, so I did not expect that I would be called. I figured since they just needed 11 grand jurors — nine jurors and two alternates — September would come and go before they got to me.
Surprise, surprise. In July 2009, I received my call for two weeks of service. I had the time so I ended up serving three. By the end of the third week I was ready to shoot myself rather than serve another day.
I was surprised by my reaction because crime is something that I am “into” and I have been around the criminal justice and law enforcement systems my entire working life.
The truth of the matter is that after 15 days I was bored, frustrated, and depressed.
Despite what the prosecutor told us during orientation — that we served an important role in the justice system and that we were not simply there to “rubber stamp” their work — I felt like a tool of a government institution that was simply going through the motions. I did feel like I was expected to rubber-stamp their work and I know that is not what a grand jury is supposed to do.
Grand jurors are supposed to determine whether probable cause exists to indict a person for a crime. In other words, based on the information presented to the grand jury do at least seven of nine jurors believe that it is more likely than not that a crime occurred and that the defendant did it. If seven members agree this is the case, the defendant is indicted and the case proceeds through the court system. In other states and for misdemeanors and juvenile crimes the grand jury system is replaced by the preliminary hearing, where a judge determines probable cause.
The standard of “more likely than not” is extremely low and it is easy for a prosecutor to present a case that flies over that threshold without much effort. In my three weeks on the grand jury we never failed to indict a single person. Whether or not those defendants are convicted based on the much more stringent standard of reasonable doubt is not up to me, but sometimes I could not help but look past the probable cause standard and wonder if the case the prosecutor was presenting was too weak to merit a conviction.
Consider this case that gave me some trouble because of my personal threshold of probable cause. The facts presented are the total amount of information we received:
An 8-year-old girl reported to a counselor that three years prior (when she was 5), her mother’s boyfriend raped her. The girl did not use the term rape. She said that when she was in the bathroom the man put his thing in her private and then in her butt. She said it hurt. There was no physical evidence — no scarring or STD or infection of any kind. When confronted the ex-boyfriend said “something” happened in the bathroom. He used the term “something” and then invoked his Fifth and Sixth Amendment rights.
After the cop — who was not the investigating officer and could not answer any questions beyond what was in the case summary — read us the facts, the prosecutor explained the law (I’ve dropped the irrelevant parts of the statute):

2907.02 Rape.
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(B) Whoever violates this section is guilty of rape, a felony of the first degree.
2907.01 Sex offenses general definitions.
As used in sections 2907.01 to 2907.38 of the Revised Code:
(A) “Sexual conduct” means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

Based on the facts and the law, is it more likely than not that the defendant raped the girl?
At first I didn’t have a problem voting to indict, but then I started thinking about the facts and the law. Essentially it was a he said/she said situation. Based only on that, I could not say it was more likely than not that the crime of rape occurred. So I thought a bit more. Would an 8-year-old make up such a story? Maybe, maybe not. This was an 8-year-old telling about something that happened when she was five. In the life of a child that’s a long time. What if she was imagining that such a thing happened? What if she had just had a good touch/bad touch conversation with someone and wanted attention? What if Mommy was pissed off at the boyfriend and wanted to burn him so she coached the little girl on what to say? What if the girl was interviewed by an inexperienced investigator who asked leading questions?
The defendant admitted “something” happened, but what if that something did not constitute “sexual conduct” as defined by law? Maybe he fondled her? Did the police tell him that the girl said he penetrated her vaginally and anally?
I asked some of those questions and my fellow grand jurors looked at me like I was the sickest, most disgusting man in the city.
“I’m not trying to defend this scumbag,” I said. “But I’m not convinced there is probable cause yet.”
“Do you think a little girl would make this up?” someone asked. I responded that I thought it was possible because it had happened before.
I am ashamed to admit that I was browbeaten by my fellow jurors into shutting up and when it came time to vote, I voted to indict. At the time I justified my vote by thinking 1) it didn’t matter because there were already enough votes to indict; 2) more evidence would probably be revealed at trial; and, 3) if the guy was innocent then the prosecutors wouldn’t be able to reach the reasonable doubt threshold.
The next week the Columbus Dispatch ran a story about a man who was freed from prison when DNA proved that he was wrongfully convicted of raping a child. In that case physical evidence showed that someone else committed the crime. In the case I heard there was no physical evidence. If this guy did not rape the girl there would be nothing like that to exonerate him.
I really hope that I am wrong and that this guy will be punished for what he did. He did admit that “something” happened and if that “something” was only fondling or didn’t involve penetration, he probably would have said so. In our justice system he didn’t have to say anything, but he was damned if he did and damned if he didn’t. If he admitted it, boom! he’s guilty of the crime. If he invoked his right to remain silent then the only thing we would hear is the “more likely” side of the story. We don’t get the “than not” side.
I guess I’m pissed that the prosecutor didn’t do a better job in building her case and I’m pissed because she probably knew that she only had to do a half-assed job to get the seven sheep she needed to vote her way on the indictment. I’m pissed that I had to be the one to stand up for a child molester, and I’m pissed that my fellow citizens were willing to accept everything the cops and the prosecutors told them as gospel.
And that is what it was like to serve “the invaluable function in our society of standing between the accuser and the accused.”
If you ever get a chance to serve on a grand jury, do me a favor and at least ask one question each day. The probable cause threshold is low, but it is a threshold after all, and remember it isn’t unheard of for prosecutors to lie.