Thirty Days on the Grand Jury

The Torment of Secrecy

by Edward Jay Epstein

Bringing the proverbial ham sandwich to the Grand
Jury to test the competency of the prosecutors

On Monday, November 6, 2000, I, along with twenty-two others, picked by lot, were sworn in as a New York State's Grand Jury. The tenure, one month.

The Grand Jury is an inquisitional rather than a judicial body. It determines whether felony crimes have been committed in New York and, if so, whether there is sufficient evidence to bring suspects to trial. Before anyone can be brought to trial on a felony charge in New York, he must be indicted by a Grand Jury. Unlike any other public body in American society, the Grand Jury's work is classified an eternal secret. Even after its cases are closed, and all its principal witnesses and targets dead, the inquisition cannot be disclosed to the public (unless by permission of the court itself— as in the Potus-Lewinsky Affair).

The Grand Jury originated in twelfth-century England as a cat's paw of the Crown. Through it, the King's trusted knights could arrange to imprison the less trusted knights. Its secrecy was crucial to its mission: if knights discovered they were the target of this star chamber jury, they could flee the realm, or worse, take up arms against the crown. Its role changed when knights got rights in the thirteenth century in the form of the Magna Carta. The Grand Jury, not the King's sheriffs, was given the sole right of indictment, making it a shield against the arbitrary power of the Crown. Under the Magna Carta, knights had to be first indicted by their peers before they could be brought to trial by the crown. Skipping ahead several hundred years, this protection was transplanted by colonialists to America and put into the Bill of Rights, which guarantees "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." Early in the twentieth century, Judge Learned Hand still could describe the Grand Jury as the "voice of the community." In theory, it remains an autonomous power center. It has virtually unlimited power to probe any subject of concern. It could, for example, launch a secret inquisition into election abuses, hospital practices or even the visual abuse of runway models at fashion shows. And, to this end, it can issue subpoenas witnesses, their records and other evidence. It can also grant immunity and publish expository reports. It can even get rid of the district attorney and other court officers and become a runaway grand jury. The last runaway Grand Jury of note, however, was in the nineteen-thirties when a Grand Jury barred the D.A. Thomas E. Dewey from its chambers and conducted its own investigation of organized crime .

Untamed Grand Juries are, alas, history. Nowadays, it meets in a venue more reminiscent of a high school homeroom than a star chamber. There are four rows, with 23 numbered seats, facing a desk. The number of the seat provides the Grand Juror's alias (Grand Juror #1, Grand Juror #2, etc.) The Court, by lot, selects one as foreperson who is responsible for swearing in witnesses and pressing the buzzer, which is its connection with the outside world. The only other people allowed in the room are witnesses, district attorneys, stenographers and a court clerk who handles administrative chores (such as telling the Grand Jurors when they may go). The cases, according to the estimate of one experienced district attorney, usually take between ten and fifteen minutes. The prosecutor comes into the room, introduces himself, identifies the witnesses he will be calling, and the theory under which he will asks for indictments. Then, one at a time, he brings in and questions the witnesses. In most instances, the witnesses are police officers, who are led through more or less standard scripts. Assistant District Attorney Bob Kay, whose judicial panel reviewed the activities of grand juries, revealed on the Internet what a Grand Jury hears in a typical textbook "B&B"(buy and bust) narcotics case. Two witnesses appear.

The first is an undercover cop, who says:

"My name is undercover officer badge number 1243. On this date and time I approached an individual who I referred to as ‘JD Red Cap' [since at the time of the transaction the officer does not usually know the name of the defendant, the officer refers to that person as JD, for John Doe]. I had a drug related conversation with him. He showed me some tin foil packets of what I believed to be cocaine. I exchanged a certain amount of United States Currency for the tin foils. I later saw JD Red Cap in the precinct under arrest and I learned his name to be..... I sent the tin foil packets to the lab."

Then comes the second witness, the arresting officer, who says:

"I placed someone under arrest identified to me by UC Officer 1243 as JD Red Cap. Upon arresting him I learned his name to be ..... I found an additional 12 tin foil packets of cocaine on his person. I sent the tin foil packets to the lab".

Then a lab report, though hearsay, is introduced into evidence, and, based on this script, the grand jury is expected to charge the defendant with three counts— felony sale, possession with intent to sell and simple possession. The defendant, if indicted and could get 20 years in prison. Such B&B stings, often involving only a $10 sale, account for about 40 percent of Grand Jury cases.

There are many variations of this boiler-plate script for other felonies, but they also generally depend on the testimony of one or two policemen. After presenting his prosecutorial brief, the district attorney in the guise of thee Grand Jury's impartial legal advisor, explains how the law supports the case he has just presented. He and the stenographer then depart, leaving the grand jury to deliberate in secret.

Even in highly complex cases, involving multiple defendants and multiple counts, a Grand Jury can usually reach its decision in a matter of minutes. To expedite the rush to judgment, the vote can be as a "batch" rather than as individual charges. After 12 hands---a majority---go up, the buzzer is sounded, the clerk picks up the paperwork and then, through the revolving door of justice, comes another prosecutor (or sometimes the same one) with other police witnesses (or sometimes the same ones) who then conduct another ten-minute mini-trial. Despite the similarity of the scripts, and repetition of the actors, it is, at least for the Grand Jurors, the ultimate equivalent of a TV reality show. Instead of commercial interruptions, other DA's 30 second spot appearances, announcing for the stenographer's record, that they are opening up some unrelated investigation which might not be brought before that Grand Jury. But, even with these interruptions, it is possible for the Grand Jury to dispose of four or more defendants in an hour.

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