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.] 

New Mexico Judge Sues Her Own Court

One local judge has formally threatened a lawsuit against the others – or at least against New Mexico’s Third Judicial District Court.

Judge Lisa Schultz has served a rambling Tort Claim Notice headed “re: Whistleblower Retaliation / Hostile Work Environment.”  Such notice is a requirement for any lawsuit against a state entity.  This one makes for sad reading.

Her claims include that a “spy” was assigned to work for her, that an incorrectly placed sewage line hasn’t been fixed, and that someone wore too much perfume into her office despite her allergy.  (She says that after she complained about the perfume, the perfume-wearer sprayed perfume around Judge Schultz’s desk.)   Judge Schultz “also found out that the reason Judge Murphy moved out of his old chambers was the mold from so many leaks in the roof.”  She also claims that when she got assigned a lot of domestic relations cases, and asked Judge Driggers to mentor her, he assigned that task to Judge Riedel instead of doing it himself.

It was Judge Schultz who rather doggedly pushed for legal proceedings against then-Judge Michael Murphy.  There was no hard evidence Murphy had done anything remotely criminal.  Even Judge Schultz admitted she wasn’t sure whether or not he was joking in certain crucial comments he made.  Nevertheless, Murphy was ultimately charged with a bunch of felonies, possibly because it was politically convenient to the folks making the charges.  Murphy eventually resigned.  The felony charges have lingered.  Judges from outside this district have handled the case.

Judge Schultz says the Murphy case judge and Judge Driggers urged her to speak with Murphy’s defense attorney, and that Driggers “stated that he didn’t understand my reluctance to be interviewed unless there was a concern that the statement I had previously given was not accurate.”  She alleges that when she refused, the defense attorney accused her of being biased for the prosecution.  (Since she had run around taping Murphy and other judges, hoping in vain to record something incriminating, then wouldn’t discuss the facts with Murphy’s attorney, I can see how someone might infer that she favored the prosecution.)

IF Judge Schultz is right that all the other judges are against her, and retaliating against her, then of course that’s improper; but her Tort Claim Notice doesn’t tend  to inspire great confidence.  It’s disjointed, and it raises a host of grievances against folks other than the Third Judicial District Court.  An apparent attachment, a verbose Motion filed with the Supreme court, references other writs by her, and suggests she’s spent considerable time on such things.  It looks as if she sometimes acted more like a litigant than a witness.

On page 7 under “Caseload Harassment,” she raises an odd set of issues, including that the Chief Judge “reduced my new criminal caseload from 65% to 40%” and that

two months later “Defendant Murphy renewed his demand for five years of my prescription drugs.”

I don’t know whether her caseload was too heavy or too light, because Chief Judge Douglas Driggers courteously declined to answer my questions on the subject and Judge Schultz wouldn’t even call me back.

Ordering her to show a list of her prescription drugs seems an easier call, because it’s on the public record and because it’s common sense.

According to public documents, Judge Schultz wrote that in pre-op for surgery in Illinois,  having just taken an anesthetic, she saw a TV news item about Governor Blagojevich.  It mentioned “pay to play.”  This “had a powerful and clarifying effect on me.”  This was “the last thing I remember before going under for surgery.”     When asked in an interview whether she was on any other medications, she refused to answer.

If the accusing witness against my client had acted oddly, I might ask for some medical information.  Such discovery issues are fought out every day in lawsuits.  Witnesses give up the information or seek a protective order, which judges grant or deny.

Here, the judge (not from 3rd J.D.) ruled against Judge Schultz.  The judge ordered her to let him review the list of prescription drugs privately, so that he could show defense counsel only what appeared relevant.   The fight went all the way to the NM Supreme Court.  The Supreme Court ordered that she produce the list as ordered, so that the judge could give the defense what appeared relevant.  (Nothing did.)

As a trial lawyer I see little for her to complain about in this.  (Since she never called me back, I can’t evaluate her explanation if she has one.)  How drugs might have affected her actions was clearly in issue, based on her own journal.

When I mentioned the Notice  to two local lawyers, they wondered out loud about her health.  When I replied that the Notice mentioned allergies and medical problems, they shook their heads and added, almost in unison, “maybe some mental problems.”

At any rate, the Notice will go through whatever analysis and response the duly-constituted authorities deem fit, and maybe spark a lawsuit.  Another punch-line about Doña Ana County.

Meanwhile, this development won’t enhance judicial collegiality down at 201 Picacho.

                                               -30-
[Most of the foregoing column appeared this morning, Sunday, February 17, in the Las Cruces Sun-News.

The foregoing is kind of a sad story.  Ms. Schultz appears to be a somewhat troubled person.  It may even turn out that rather than causing the difficulties she felt she had with her colleagues, the whole Judge Murphy saga resulted from those difficulties.  

It's hard not to feel sorry for Ms. Schultz -- even though she's living off the public.  (The newspaper compassionately omitted the paragraph noting that two lawyers had indicated their opinion that she had mental problems.  A third attorney made a similar comment to me this morning, and others have in the past.)  It's hard not to feel sorry for Mr. Murphy, too, although if he made the homophobic comments attributed to him he's probably well off the bench.)  I've never met either one, by the way, or even talked to either on the phone.  I have no dog in this fight.  The whole thing just makes me sad -- and I hope it doesn't cost too much administrative time for the state and the third judicial district to defend a lawsuit by Ms. Schultz if one ever results.]