Serving on a Grand Jury

Because grand jury proceedings are confidential, this column has limits.

When I got called, I guessed they'd throw me out for being a lawyer, a columnist, and an oddball. But I went.

Serving each Thursday for three months was uninviting, but seemed a civic duty. The first day, I sat with scores of others, watching some folks try to get out of serving. The chosen twelve went into a room. Then a lady came out to ask for a volunteer to replace someone. I volunteered. The other eleven made me foreperson. Nothing personal. They'd just agreed to lay that on the new guy. 

Grand juries decide whether or not to indict people charged with crimes. An indictment means the case continues toward a possible trial. Grand jurors merely decide whether it's “more likely than not” that the prospective defendant has committed the crime(s) charged. Not whether searches or arrests were legal or the cops entrapped someone. Not whether someone's guilty “beyond a reasonable doubt.” It takes eight affirmative votes to indict.

Proceedings are secret because everyone's innocent until proven guilty. There's no need to tarnish reputations of people investigated but not indicted. Also witnesses deserve to be sure their testimony won't be reported.

We started by 8:30 and worked till late afternoon, even 5:30 once. 

Each morning we got a list of 20-30 cases, identifying the person charged, the alleged crimes, and the testifying officer. If any of us knew the officer, victim, or accused, we were asked whether or not the relationship would affect our objectivity. The crimes ranged from car burglaries to murder, but were heavy on drug cases (mostly meth), domestic violence, and child abuse. 

For each case, Assistant D.A. Heather Chavez would go on record and read the applicable instructions for the count(s) charged. If we had no questions, she brought in the law-enforcement officer. After I swore him or her in, s/he answered Heather's questions. Hearsay was allowed, so we heard everything through the one officer. We listened for the required elements of each crime. When Heather finished, we could ask questions, and often did.

Then Heather, the witness, and the court reporter left, so we could deliberate. Privately. We couldn't tell even Heather about our deliberations, beyond the result. Sometimes “deliberating” was just me asking if anyone had a question or observation, then taking a vote by show of hands on each count. Sometimes we had extended discussions. Sometimes we called Heather or the officer back in to answer a further question. If there were eight affirmative votes, I'd sign the indictment and call Heather back in.

Defense attorneys complain that grand juries are so strongly influenced by the district attorney that they would indict a ham sandwich. The first day, we declined to indict someone because the victim's account didn't seem credible, even secondhand. 

Most cases were straightforward. Sometimes I foresaw real issues for trial, but not for the grand jury. Occasionally we declined to indict. Sometimes we indicted on a lesser charge, or on just some of the counts. Sometimes we added or strengthened a count because we thought the testimony warranted it.

Our varied group enjoyed working together. We were forced to take a glimpse into some very unpleasant lives being lived among us; but legal problems, which are basically human problems, can be interesting. Without commenting on whether grand juries are good or bad, I can say people I met took it seriously. 

We had a pot-luck the final session. I asked how many, if we were asked to serve three more months, would agree? Nearly everyone raised a hand.

                                                            -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 8 January, as well as on the newspaper's website and KRWG-TV's website.]

[It seems in order to thank court staff for their unfailing courtesy and helpfulness.  We met Alma, who kind of kept the whole thing running, as well as several court reporters, bailiffs, and others.  They were great.  ]

[It may shock some readers to hear that although we had long discussions on some cases, some took under five minutes to hear the Instructions and testimony, deliberate, and report to Heather whether or not at least eight of us had voted to indict.  (We couldn't even tell her the exact vote.)  However, for indictment purposes, some cases are that simple.  An officer reports that she saw a car going 70 in a hospital zone and that when she made the traffic stop the driver, Abel Smith, emerged mumbling, "I'm soooooo shit-faced," then falls on the ground, and scientific tests confirmed the driver's blood-alcohol percentage of .19.  Is it more likely than not that the driver drove while intoxicated?  Although I unfailingly asked whether anyone had a question or concern, it sometimes happened that, quite reasonably, none of us did.  Sure, at trial the defense attorney can try to prove the driver was Abel's twin brother, Cain, or that the breathalizer hadn't been calibrated for 17 years, or that a search of the car, turning up methamphetamine as well as an open bottle of tequila, was illegal.  But no one's making those arguments to us, at this stage of the proceedings.  We're not convicting anyone, or assessing legal issues such as the propriety of a search.  We don't meet the accused, and in some cases don't meet the officer who actually made the stop or conducted the search, so we're not making fine judgments on witness credibility.  Or imprisoning anyone.]

[I should note that the accused can ask to testify to the grand jury; or he or she, or his or her lawyer, can suggest the grand jury subpoena a particular witness who allegedly be helpful to the accused; but these rights are very rarely utilized.  Nor would a competent lawyer want to invoke them in the average case.] 

[I may write some later column on the legitimate political question of whether grand juries ought to continue or should be phased out.   The alternative is a preliminary hearing, in which the two sides, with lawyers, fight a kind of preliminary trial.  This has benefits for the defense.  It's also public.  Defense attorneys argue that it's fairer.  On the other hand, it's probably more costly.]