How Grand Juries Work
In 2013, I was called to serve on a federal grand jury for one of the Arizona districts. This meant that I was called upon by the government to appear every other week for one year, unless circumstantially hindered, each time for a full day of hearing cases. As a consequence of my service on a grand jury, I find myself informed and understanding of circumstances related to recent events in ways that many of my family and friends are not. I thought it would be worth some time to reflect a bit on how grand juries work.
How a grand jury is formed
Grand juries are called by random selection, like normal juries. When I was called, I was one of more than 40 people who appeared; from the 40 of us, 22 jurors and 10 alternates were chosen, again at random. There were a few who were asked to serve and were dismissed because of a hardship (in one case, the woman was the primary caregiver for an aging parent and could not afford to be gone every other week) or circumstance (in another case, the potential juror worked for a law firm which sometimes represented federal cases, and it was deemed a conflict of interest). No one was dismissed because of their profession, age, gender, political views, race/ethnicity, or for any other subjective reason.
Obviously different grand juries are constituted of different numbers of people (the grand jury in the Michael Brown shooting in Ferguson, MO was a twelve-member jury) — in my grand jury, the minimum number of jurors to constitute a quorum was 17. But grand jury members are not picked in the way that a lot of people think of juries being chosen by the attorneys, where the jurors are selected based on a hoped-for outcome.
The duties of a grand jury
Grand juries are brought cases in the form of “proposed bills of indictment” — that is, a case is made that a crime has been committed, and the evidence in support of that case is presented. Then the grand jury must decide whether a crime has, in fact, been committed, and if so then whether there is sufficient evidence to proceed to trial charging the person or persons named with the crime. If the grand jury determines that both are true of a case, then they submit a “true bill of indictment” — and if not, then they submit a declaration of “no true bill.”
A grand jury may take as long as they like to determine whether or not there is a true bill; however, they are dependent, to a degree, on the prosecuting attorneys (whether they be district attorneys, state’s attorneys, or U.S. attorneys) to present the case and all of the relevant evidence pertaining to it. In other words, while a grand jury has the power to subpoena evidence or witnesses of its own accord, the members of the grand jury wouldn’t know how or what to subpoena apart from the facts of the case offered to them by the prosecutors. In my experience, the extent to which the attorney was able to lay out a thorough, well-evidenced case was often the difference between whether the indictment was clear or whether it was up for debate.
Once a case has been presented, the members of the jury may deliberate about the case before voting on its outcome. They may amend the charges presented on the proposed bill and vote for the amended charges, or they can vote it up or down as-is. A majority of a certain number of jurors is required for the indictment to be voted a true bill; for the grand jury I sat on, it was a two-thirds majority of the quorum (which meant a minimum of 12 votes in favor were required).
How a grand jury works
Before any case can come before a grand jury, the members of the jury must be instructed on the laws that govern the crimes in question. With the grand jury I served on, we saw a number of cases that were similar in nature (being southern Arizona, it may not surprise you to know that we saw a lot of immigration and smuggling-related cases), so we became pretty familiar with the laws about these kinds of crimes. But most weeks there was something new, and we would receive new instruction. The grand jury may ask questions of the attorney(s) who are instructing them, until everyone is satisfied that they understand the laws that are relevant to the proposed indictments.
Next, the case is presented. At minimum, this will involve an attorney interviewing a law enforcement officer who is familiar with the facts of the case; it may include more than one officer, other witnesses, and/or the presentation of other evidence. The grand jury may examine the evidence as much as they wish, and they may ask questions of the officers and/or witnesses. There is no judge present to preside over the proceedings; instead, a foreperson leads the jury proceedings both during the presentation of the facts of the case and in the deliberations. Once all of the facts are presented and questions asked of the witnesses, then the jury may also ask further questions about the law of the attorney(s).
Having completed the gathering of all of the information that they can, then the grand jury goes into deliberation — meaning, they will discuss, debate, and sometimes argue about whether a crime was committed or whether there is sufficient evidence that this person committed it. During this time, the attorneys and the stenographer leave the room and only jurors are allowed to be present. Deliberation may take as long as the jury needs, after which they vote.
When all of the cases before a grand jury have been presented and voted upon, the foreperson takes all of the proposed indictments before a judge and testifies under oath about the findings of the grand jury, presenting the true bills and the no true bills accordingly.
The role of the attorneys
The attorneys play a crucial and central role in the grand jury process. Not only do they present each case and all of the facts related to it, but they are also the guides and teachers of the grand jury with regard to the law itself and what constitutes a crime under it.
In my experience, these attorneys wield this power with great trepidation. First of all, everyone I encountered, from top to bottom, in the grand jury system exuded a sense of respect and even reverence for the importance of the grand jury process; they did not take for granted a single piece of it, even when we were on the 18th immigration case of the day (which was almost exactly like the other 17 cases). Not only so, but they regularly reminded us — the jurors — of the gravity of each case and of the process as a whole. Every case mattered, because every case was about someone and their standing before the courts.
Secondly, they were also aware that the proceedings of the grand jury would be the basis upon which any future trial would stand or fall — so they were vigilant to protect their cases from even a suggestion of mishandling. For example, if a juror asked a question about a matter that was irrelevant to the facts of the case (and perhaps could be seen as prejudicial), they would instruct the witness not to answer the question. They knew that they would be accountable for the outcome of the grand jury proceedings, and they didn’t take that lightly.
The difference between justice (according to a legal system) and ethics
All in all, my experience on a grand jury served to give me a greater appreciation for the justice system and how it works, and for how much those involved in the system took it seriously and treated it with respect. It made me trust the system more, and to feel more at ease that, insofar as our system allows, “justice” according to the law is served — even in a case like the Michael Brown shooting in Ferguson. Those members of the grand jury who have seen all of the evidence and heard all of the testimony know better than I do about whether a crime was committed.
What I also saw, and what comes to mind again tonight after the Ferguson grand jury returned “no true bill,” is that there is often a gap between “justice” — according to our judicial system — and ethics. There were times when, as a member of the grand jury, I had to vote in favor of an indictment because, according to the law, a crime had been committed; nevertheless, I was equally convinced that it was a waste of time, money, and other resources (not to mention a life-changing matter for the indictee) to prosecute the crime that was before us.
Likewise, even though I trust the system that returned no true bill against officer Darren Wilson, I cannot help but believe that his actions were unethical. And that leaves me wondering: what is broken in the whole of it all? Is it the legal and judicial system? Is it the law itself?
In the end, my theology and my instincts tell me that the problem isn’t so simple or so singular as either of those. Rather, the problem is the fallenness of humankind — so it’s me. And it’s you. But it may be more me than you — because I’m a part of white, middle-class culture that accepts privilege and ignores racial sin and can turn off the TV when we’re tired or overwhelmed or frustrated with the news about grand jury returns and the reactions to them. I haven’t spent much time in Ferguson, but I still have a part in what led to both the shooting of an unarmed teenager and the riotous reactions to it. And I need to confess that, as do all of us who are part of the corporate racial sins of our culture.
Don’t blame the grand jury. Blame me. Blame us.