CJI 0530: Legal Issues in Criminal Justice (Winter 2020)
FINAL EXAM INSTRUCTIONS
Your exam is due by Sunday, March 1st at 11:59pm [EST].
The final exam covers material from the entire course.
The format of the exam is ESSAY.
You are responsible for reading all assigned readings in preparation for the exam.
The essay questions are listed on pages 4, 5, and 6 of this document.
Select and answer four (4) of listed questions.
Each essay response is worth 62.5 points for a total possible score of 250 points.
• Answering more than four (4) questions will NOT give you extra credit.
• If you answer more than four (4) questions, only the first (4) essays will be graded.
The Exam Grading Rubric is on page 3 of this document
Please read the rubric carefully.
Your essay responses must be submitted via Canvas ONLY using the TurnItIn Dropbox.
Please also re-read the handouts on plagiarism under IMPORTANT DOCUMENTS.
You must include a minimum of two (2) outside scholarly sources per essay question.
Appropriate scholarly sources include articles from academic journals, textbooks,
Supreme Court cases, and government reports (e.g., National Institute of Justice).
Magazines (e.g., Newsweek) and open-source websites (e.g., Wikipedia) are NOT suitable
sources for the final exam. The use of such sources will decrease your score.
Your submission must be typed, double-spaced, have 1-inch margins, use Times New
Roman 12-point font, and have a cover page.
Each essay response must be at least two (2) full typed pages, NOT including references.
Include the question number but do not include the question text at the start of your essays.
Begin each essay on a new page and have a separate reference list for each essay.
Combine all essays into a single Word or PDF document. (TurnItIn will not allow you to
submit a separate file for each essay.)
This single document must have a cover/title page.
All submissions must be original and completed for the first time, for this term and course.
You must complete the exam individually. You are NOT permitted to collaborate with another
student. Preparing your exam as a group and/or sharing responses is strictly prohibited.
Again, your exam is due by Sunday, March 1st at 11:59pm [EST].
Page 1 of 6
CJI 0530: Legal Issues in Criminal Justice (Winter 2020)
FINAL EXAM TIPS
1.
Primarily rely on, and be sure to fully incorporate, the assigned course materials.
−
However, you must also be sure to use outside sources that supplement and
enhance your responses.
−
Remember: The outside sources you choose must be academic and scholarly.
2.
Write in your own voice.
−
Use direct quotes (especially long ones) sparingly, and paraphrase more often.
−
YOUR understanding of the topics—not Israel’s or Hemmens’s or The
Constitution’s—is most important for your grade.
3.
Read the instructions and the grading rubric carefully.
−
The exam instructions and grading rubric communicate exactly what is expected.
−
For example, you WILL lose points if you do not have a title page, or if you do
not have a reference page for each essay in APA format, or if you submit an essay
that is only one page long.
4.
Proofread before submitting.
−
It may be helpful to proofread out loud to make sure that your writing flows
properly, is clear and well-organized, and is grammatically correct.
5.
Answer the questions that are being asked.
−
Even the most well-written essay will not receive full credit if it does not properly
address all the issues and concepts that are in the prompt.
−
It may be helpful to outline your essays before you begin writing.
Page 2 of 6
CJI 0530: Legal Issues in Criminal Justice (Winter 2020)
FINAL EXAM GRADING RUBRIC
Total Score Possible: 250 points
(62.5 points PER QUESTION)
DOES THE ESSAY RESPONSE
TO EACH QUESTION:
EXCELLENT
SATISFACTORY
UNSATISFACTORY
Effectively address all issues?
Addresses all parts of
and issues within the
question. (25 pts)
Addresses only some
parts of/issues within
the question. (5 – 20 pts)
Does not address the
question properly.
(0 pts)
Incorporate all relevant
assigned reading materials
AND at least two (2) outside
scholarly sources?
All assigned readings
are incorporated. At
least two outside
scholarly sources are
incorporated. (15 pts)
Some assigned readings
are incorporated, but
others are missing; and/or
fewer than two outside
scholarly sources are
incorporated. (5 – 10 pts)
No assigned readings
are incorporated. No
outside scholarly
sources are
incorporated. (0 pts)
Reflect originality and address
the issue(s) in the student’s
own words?
Reflects original
content composed by
the student in his/her
own words. Similarity
index from TurnItin
Report falls within
acceptable range:
0-20%. (10 pts)
Includes some original
content composed by the
student, but relies too
heavily on sources.
Similarity index from
TurnItin Report falls
within problematic
range: 21-39%.
(5 – 10 pts)
• Has clearly
• Is disorganized or
expressed ideas and
unclear in some areas;
is well organized;
contains spelling and
contains few, if any,
grammatical errors,
grammatical errors.
but most are minor.
• Adheres to only some
• Adheres to all
requirements.
formatting
(5 – 7 pts)
requirements.
(7.5 pts)
Almost no original
content contained
within the response.
Similarity index from
TurnItin Report falls
within unacceptable
range: 40% or more.
(0 pts)
In text-citations and a
reference page are
included using APA
Style. (5 pts)
No in-text citations are
used and/or no
reference page is
included. (0 pts)
Exhibit good writing (e.g.,
clear arguments, strong
organization, critical thinking
and analysis, correct spelling
and grammar, etc.) AND
adhere to all formatting
requirements (double-spaced,
1-inch margins, 12-pt Times
New Roman, minimum of two
full pages, etc.)?
Include in-text citations as
well as a reference page using
APA Style?
In-text citations are used
and a reference page is
included, but style is not
APA. (1 – 4 pts)
Page 3 of 6
• Exhibits complete
lack of structure; is
difficult to follow;
contains fragmented
ideas and/or major
grammatical errors.
• Does not adhere to
any requirements.
(0 pts)
CJI 0530: Legal Issues in Criminal Justice (Winter 2020)
FINAL EXAM QUESTIONS
Question #1
Carefully read the fact pattern below. Then, identify and discuss as many Fourth and Fifth
Amendment issues as you can.
Ross, a police officer for the Carol City Police Department—out of uniform—showed up at Jackson’s
house, knocked, and asked if he could enter to execute a warrant. The warrant was a search warrant,
issued by Judge Judy. The warrant stated that “the first-floor of Jackson’s house will be searched for
a gun used in connection with a robbery, as well as two paintings which were stolen.” While looking
in Jackson’s house, Ross smelled what he thought to be gunpowder emanating from the second floor,
and he quickly—without looking for anything else—walked to the second floor and found a gun at the
top of the steps, which he confiscated. The gun had a note attached to it which listed an address. Later
that day, police arrived at the address listed on the note, and it turned out that two stolen paintings
were found there and were then confiscated. (The address was a known place where stolen paintings
were hidden.) While at his house, Jackson stated to Ross that, “I do not know what you are here
because I did not rob the Art Museum.” Nevertheless, Ross asked Jackson to accompany him to the
station. Ross agreed, and as they walked in, Judge Judy stated loudly, “Is that the guy who stole the
paintings?!” To which Jackson replied, “I already told Ross that I did not rob the Museum!”
Question #2
A.
Of the four commonly used sources of law discussed in Chapter 4 of the Hemmens book
(Fourth Amendment, Terry v. Ohio (1968), Fourteenth Amendment, and Title 42 U.S.C.
§14141), which would likely be the most viable in a racial profiling case, and why?
B.
Is it possible for a police officer to enforce federal immigration law without considering
the race or ethnicity of potential suspects?
C.
Given the methodological difficulties associated with estimating the racial/ethnic
proportions within the driving population at large, will it ever be possible to accurately
measure a disparate impact?
Question #3
A.
What were state and federal lawmakers trying to achieve when they adopted sentencing
reforms in the 1980s and 1990s?
B.
How did the laws in effect at the time that Charles Apprendi (Apprendi v. New Jersey,
2000), Ralph Blakely (Blakely v. Washington, 2004), and Freddie Booker (United States
v. Booker, 2005) were sentenced deprive them of the right to a jury trial?
C.
Several United States Supreme Court decisions strengthen criminal defendants’ Sixth
Amendment right to a trial by jury. If that is the case, then why has the rate of criminal
trials not increased as a result?
Page 4 of 6
Question #4
A.
What are the differences between the United States Supreme Court’s “hands-off”
doctrine and its later “litigation revolution” era regarding lawsuits filed by prisoners?
B.
Carefully read the fact pattern below, then answer the questions that follow:
Abby alleged that she was involved with the Floribama Bureau of Investigations in 2015 and
that her fellow prisoners learned of this and subjected her to repeated assaults. In July 2016,
Abby wrote to the Warden of North Floribama Women’s Prison (NFWP) and requested a
transfer to another facility; however, that request was denied. In August 2016, Abby claimed
that other prisoners at NFWP attempted to assault her. A week later, she asked the Chief
Security Officer Warden of NFWP for a transfer, who forwarded the request to the Warden.
Abby was offered protective custody but she refused it. Abby wrote again to the Warden
requesting a transfer to another facility, which was denied a second time. On September 22,
2016, Abby learned that other prisoners were planning to place a cocktail bomb in her cell.
She notified the Chief Security Officer of the plot, who forwarded the information to the
Warden. Abby then requested to be placed in protective custody and sought treatment from
the mental health doctor due to fear and mental anguish. Abby saw the doctor on October 10,
2016, but still did not hear back from administration regarding her other request. On October
15, 2016, she spoke with the Chief Security Officer asking protective custody placement and
for an investigation to confirm her story about the cocktail bomb plot. Her requests were
denied. On November 8, 2016, Abby said that she was slashed in the neck and left wrist by
another prisoner. The next day, she was removed from her cell block, D-Block, and placed in
another, J-Block; however, Abby alleged that she was still in fear for her safety.
Administration then agreed to place her in protective custody, but advised that the transfer
would take 3 to 4 days. Abby remained in J-Block for 56 days. While in general population in
J-Block, Abby again complained that she was threatened by other prisoners and, as a result,
she refused to shower or eat out of fear of retaliation.
i.
What are Abby’s claims based on constitutional rights? Identify those rights.
ii.
What is the PLRA, and how might Abby’s claims be limited by the PLRA?
iii.
If you were the judge presiding over this case, what would be your ruling? Fully
explain the rationale for your decision.
Question #5
A.
Describe cases that upheld and struck down confessions under the Fourteenth
Amendment due process clause. What concern did these cases cause among liberal
United States Supreme Court justices?
B.
List some of the ways in which the United States Supreme Court, since Miranda v.
Arizona (1966), has watered down the protections of suspects during interrogation.
C.
Why might the videotaping of interrogations protect constitutional themes better than
Miranda warnings?
Page 5 of 6
Question #6
A.
What is a grand jury, and what is its relation to the Fifth and Fourteenth Amendments?
B.
Compare and contrast the United States Supreme Court decisions in Hurtado v.
California (1884) and United States v. Miller (1985).
C.
Many legal scholars have argued for the abolition of the grand jury system. What reasons
have they provided to support such a position? (Hint — You may refer to the following
essays: A Grand Juror Speaks and Grand Juries: Tools of Political Repression, which
are available in the FINAL EXAM section of the Blackboard course site).
Question #7
A.
What are the requirements of a valid guilty plea according to Federal Rule of Criminal
Procedure 11, and how are the United States Supreme Court decisions in Boykin v.
Alabama (1969), North Carolina v. Alford (1970), and Henderson v. Morgan (1976) related
to the Rule’s requirements?
B.
How is the United States Supreme Court decision in Padilla v. Kentucky (2010) related
to the validity of a guilty plea?
C.
Based on the facts below and the existing case law and Federal Rule, should Sam’s guilty
plea be vacated? Fully explain your answer.
On Christmas Eve, Sam was driving 70 miles an hour on the expressway during a blizzard
when his SUV hit another vehicle. The crash killed the occupants of the other vehicle, a
married couple, Mitch and Ashley, and their young son Joe. Evidence showed that Sam did
not have a valid license and had marijuana in his car the night of the crash. Sam—who was
charged with vehicular manslaughter, pleaded guilty to the charge, and was then convicted
and sentenced to 24 years in prison—has asked the court to vacate his guilty plea. Sam has
argued that his decision to plead guilty was based on a letter from his attorney in which the
attorney told him that there was no defense to the case.
Question #8
The United States Bureau of Justice Statistics provides the flowchart below that summarizes
the most common events in the criminal justice
system. (A larger version of this flowchart is available
in the FINAL EXAM section of the Canvas course
site.) Choose one of the following major criminal
cases and discuss how it should generally progress
through the system including the prosecution,
adjudication, sentencing, and corrections stages:
•
Michelle Carter texting suicide case
•
Nikolas Cruz school shooting case
•
Jodi Arias murder case
•
“El Chapo” drug trafficking case
•
R. Kelly sexual assault case
Page 6 of 6
GRAND
JURIES
Tools of Political Repression
Craig Rosebraugh
PAGE 1
It is a commonly held thought that the constitution of the United States
of America guarantees certain rights and liberties to citizens of the country. Contained in this list of entitlements are protections thought to be
universal in the court system. Yet, a closer look into a particular section of
the justice system reveals to many what is often a shocking reality; there is
an institution within both state and federal governments which operates
in secrecy and strips individuals of basic fundamental tights. The particular
clause below contained in the Fifth Amendment to the U. S. Constitution
is widely overlooked or clearly unseen;
No person shall be held to answer for a capitol, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in the militia, when in actual
service in time of war or pubic danger (National Lawyers Guild, 1997, p.
vii).
The line ‘unless on a presentment or indictment of a grand jury’ contains
an important and perhaps hidden message of absolute power and exemption from process law. Historically, this meant and on the federal level still
means that an individual may not be brought to trial for a serious crime
unless a grand jury has heard enough evidence to return an indictment
(Frankel and Naftalis, 1977).
Grand Juries es, often referred to as the strong arm of the court system,
thrive off public ignorance, working behind closed doors where they
continue to operate under seemingly little regulations. Often working in
accordance with the Justice Department, the grand jury system has been
and continues to be used for intelligence gathering and suppression against
groups and organizations considered radical or in opposition to current
policies.
Two of the most controversial aspects of the grand jury process involve the
fifth amendment with its provisions dealing with protection against self
incrimination and fight to counsel in addition to the sixth amendment’s
fight to counsel provision. Citizens in the U. S. are generally taught that the
Constitution guarantees protection against self incrimination and the fight
to counsel during all court proceedings. While these notions are somewhat
correct, they do not apply to individuals involved in a grand jury process.
This essay will examine the grand jury system and its surrounding mystery in
order to effectively make a recommendation towards its complete abolition,
I will begin by taking a look at the historical origins of grand juries and why
exactly they came into existence. Next, a summary of the grand jury evolution will be given which will lead to an examination of their current validity in
the United States. Finally, a conclusion will be drawn as to the future of grand
juries and what should come of them. I “I draw of my own personal experience
with grand juries combined with a small library on the subject to present an
accurate representation designed both to educate and hopefully alarm the bulk
of individuals still unaware of the absolute power of the grand jury system.
PAGE 2
Given the evidence I have presented, a sound argument can be made for
the abolition of the grand jury system in the United States. If the people
were informed, and they were to decide, the current abuses and oppressive
practices by the grand jury system and the Justice Department would not
be tolerated. A closer look must be taken at our Allies in England as to the
method used for a successful abolition campaign. But I think it is obvious to everyone, including the hardline supporters of grand juries, that the
reform movement will grow at an amazing rate with public education.
References Cited
Churchill, W., & Wall, I V. (1990). Agents of repression, The FBI’s secret
wars against the Black Panther Party and the American Indian Movement,
Boston: South End Press.
Clark, L. D. (1975). The grand jury-, The use and abuse of political power.
New York: Quadrangle.
Emerson, D. D. (1983). Grand jury reform, A review of hey issues. Washington, D. C.: U. S. Department of Justice.
Frankel, M. E., & Naftalis, G. P. (1977). The grand jury: An institution on
trial. New York: Hill and Wang.
National Lawyers Guild. (1997). Representation of witnesses before a federal grand *M. (3rd ed.). New York: Clark Boardman Callaghan.
Younger, R. D. (1963). The people’s panel, The grand Jury in the United
States, 1634-194 1. Providence: Brown University Press. 1
PAGE 14
Grand Juries … A Historical Perspective
Grand Juries originated in England in 1166 which according to historians
was the year of King Henry 11’s Assize of Clarendon. The purpose of the
“Grand Assize” was to employ “a body of knowledgeable local gentry as the
King’s investigative arm” (Frankel and Naftalis, 1977, p. 6). At this time the
grand jurors were drawn from the actual neighborhood to report on things
they knew firsthand or had heard.
There was no real concern for the protection of an individual from the
state during these early proceedings. “The Grand Assize was established
to enable the king to wrest the administration of justice from the Church
and the feudal barons” (P. 7). The grand jury was basically a weapon for the
King to enforce his law. This is in contrast to today’s grand juries which in
theory serve to create a shield between a citizen and her/ his dealing with
the state.
Another clear difference in the early grand jury system is that the same
grand jury could and often did serve as a trial jury once an indictment was
found. Today, a target of the grand jury who is facing an indictment has the
tight to a separate trial jury thus allowing a second nature of opinions to
judge the case.
In the middle of the fourteenth century, the procedures in England progressed to the point where the accused could strike from the trial jury any
member of the grand jury that had helped to decide on an indictment.
Close to this same time period, the grand jury began to hear testimony in
private. It was this initial practice which would eventually give rise to the
secrecy aspect of the grand juries today.
The first instance on record of grand jury independence from the King
occurred in 1681 %kith the cases of Anthony, Earl of Shaftesbury, and
Stephen Colledge. Both of these men were vocal Protestants opposed to
King Charles II’s attempt to re-establish the Catholic Church in England.
In these cases the grand jury “refused to accede to the King’s wishes that
a public rather than private hearing be held” (Emerson, 1983, p. 9). After
hearing the evidence, the grand jury refused to indict. Unfortunately, the
King simply found another grand jury panel who were a bit more compliant. The cases of Shaftesbury and Colledge have traditionally been credited
with marking the beginning of the grand jury’s role as a shield for the innocent against government oppression.
The English colonists brought many institutions to the new land and
among them was the grand jury. The first grand jury was established in
Massachusetts in 163 5 and by the year 1683 some form of the grand juries
was present in all of the colonies (Clark, 1975). At this time grand juries
not only served to initiate prosecutions, but often served as spokesmen for
the people, proposed new laws, and protested government abuse.
PAGE 3
One of the most famous early examples of a grand jury protecting an-individual from governmental oppression came in 1743 with the case of John
Peter Zenger. Asa New York newspaper publisher, Zenger had “criticized
the colonies governor, who sought to have him prosecuted for criminal
libel” (Frankel & Naftalis, 1977, p. 11). In this case two grand juries refused
to indict Zenger. Afterwards, the royal authorities then prosecuted him
by information which was a written accusation drawn up by a prosecutor.
When this was presented before a trial jury they too refused to convict.
As the relationship between the American colonies and Great Britain
became more tense, grand juries began to increasingly serve those who
opposed British rule. In 1765, for example, a Boston grand jury refused
to indict leaders of protests against the Stamp Act. In addition, four years
later a Boston grand jury “indicted British soldiers quartered in the town
for offenses against the populace, while at the same time refusing to indict
persons charged by the royal authorities with inciting these soldiers to
desert” (p. 11).
Throughout the Revolution, grand juries continued their broad scope of
activities. One important function the grand juries served during this time
period was to block criminal proceedings begun by royal officials. By refusing to find a true bill, the American colonists could prevent the enforcement of criminal statutes, in particular the laws regulating trade.
A grand jury in Philadelphia in 1770 “refused to indict colonists and proposed a program of protest against the British tax on tea” (Younger, 1963,
p. 3 1). In addition, the jurors themselves pledged to work for a united
colonial program of non-consumption of British goods.
Politics increasingly played a role in shaping grand jury policy. In 1800,
Jefferson’s Administration sought to have Aaron Burr, a political enemy,
prosecuted for treason. The initial grand jury refused to indict and like the
Shaftesbury and Colledge cases, an additional panel heard the case and
indicted Burr. He was eventually acquitted and there remains much skepticism as to whether there was sufficient evidence in the first place to justify
the prosecution.
Before and during the civil war grand juries were ever-present with their
political divisions. In the South, grand juries eager to uphold slavery practices gave indictments against abolitionist leaders and related newspapers.
Grand juries served to pressure activists and newspapers throughout the
country into submission. This notion is revealed in the following example
taken from the book The Grand Jury; An Institution on Trial 1977, “in
New York City, a grand jury publicly warned three newspapers, including the New York Daily News and the Brooklyn Eagle, that they were
encouraging the rebels. This public criticism was followed by federal action
banning these newspapers from the mails because of disloyalty” (Frankel &
Naftalis, p. 14).
PAGE 4
At 9: 00am on January 28, 1 was fingerprinted by agents of the FBI in the
U. S. Marshals office in the U. S. Courthouse. Many states already had my
prints on file and I figured if I was arrested for contempt the FBI would
get a new full set anyway so I agreed to the fingerprinting. An hour later I
walked out of the courthouse and so far that is the last I have heard from
the grand jury. However, government agents continue to attempt to question me regarding new and past actions.
I included my personal experience with grand juries in this paper to attempt to give the reader an accurate representation of a political grand
jury and the atmosphere inside the court room. Since the proceedings are
largely conducted in secrecy there is a great benefit in learning what actually occurs
behind the closed doors.
Conclusion
In my experience with grand juries, the most fascinating realization I have
encountered is that the public at large is misinformed and kept in the dark.
Most citizens do not realize that an individual does not have the fight to
counsel nor the Fifth Amendment protection in the proceedings. Individuals I spoke with from all walks of fife were outraged when they learned of
this reality occurring in grand juries. Yet, it is this very secrecy and deception that has led to the continuation of the grand juries. It is a simple rule
that says if no one is informed, no one will object.
It is perhaps a bit odd that grand juries were abolished in England years
ago and yet in the United States they continue to flourish with little organized objection. There were definitely sound reasons for the abolition of
grand juries in England, (waste of time and tax dollars, extreme & lawless
government power) yet the public in the United States has to yet understand or even be informed of the majority of wrongdoing by this structure.
It does seem fair to say that one historic intention of the grand jury, which
was to give the people some power against an oppressive and corrupt
government, had good intentions. What the grand jury system has evolved
into is something so distant from this early intention that the current true
meaning is difficult to grasp.
Reformists for the most part want one of two options, either to abolish
the grand jury system entirely or to reconstruct it to become the “people’s
panel” like it was, at least in theory, intended. The struggle for reform is met
with great resistance from the Executive Structure itself which has used
grand juries as a tool for many years in various situations, The importance
of grand juries will be defended by these governmental institutions who
will continue to seek public support when the pressure of abolition becomes apparent.
PAGE 13
Needless to say, the Judge did not find any of these reasons valid enough to
excuse me from testifying. He ordered the U. S. Marshals to take me down
to the grand jury room where I would be forced to sit through more questioning, They led me into the room, sat me down, and took off my handcuffs. In front of me once again was the grand jury. This time to my right
was the Assistant U. S. attorney and to my left was the Court Reporter and
the three forepersons of the grand jury.
Immediately I noticed that the atmosphere seemed worse than the first
time. Not only was I back in front of this group of people that had been led
to dislike me, but the lighting was unbelievably oppressive. I was in what
felt like a spotlight with the Assistant U. S. attorney while the grand jury
sat in wrap around audience style seating with dim light. It was a spectator
sport and unfortunately I was the unwilling subject at hand.
The questioning began once again from the Assistant U. S. attorney. This
time to just about all of the questions I took the Fifth Amendment as I felt
I was going to be held anyway for contempt. An hour later the Assistant U.
S. Attorney asked where the materials and objects were that were subpoenaed from Liberation Collective. I replied that the only items Liberation
Collective had were copies of press releases that were already in possession
of the court. The Assistant U. S. Attorney then told me that I had been
commanded to bring all copies of any relevant materials. In addition he
said that if I was willing to and get the copies and be back in a couple of
hours, I would be free to leave.
At this point I did not know whether to believe him or not. I figured that
there would be no harm in giving copies of documents to the U. S. Attorney’s office which the Court already had. So I was released to go and get
the press releases.
Upon returning I was led back into the grand jury room where I sat
through another fifteen minutes of questioning and then sure enough I was
told I was done for the day. Both to the disbelief of myself and my support
committee outside I walked out the front doors of the courthouse after being handcuffed just hours earlier.
In January, 1998, 1 received a fourth subpoena from an FBI agent. This
time it commanded me to submit to fingerprinting by the Federal Bureau
of Investigation on or before January 28. 1 began working on a motion to
quash this subpoena based on my belief that giving my fingerprints would
be in violation of my Fifth Amendment protection against self incrimination.
On January 26, 1 put forth this motion in Federal Court hoping to quash
the given subpoena. I received word from the court the next day that once
again my motion had been denied and I was still commanded to give my
fingerprints or be subject to contempt charges.
PAGE 12
After 1776, the idea of the grand jury was included into many state constitutions and into the U. S. Constitution as well. Adopted into the Fifth
Amendment, grand juries made their way into the Constitution as a result
of their key role in the Revolution and also due to the fact that many colonists were fearful of creating a powerful centralized government that could
easily use the criminal process against political enemies.
During the Reconstruction period, whites gained control of the state grand
juries and used them as their weapon in their fight against “negro rights
and radical Republicans” (p. 14). In the South, white grand juries refused
to indict members of the Klu Klux Klan in addition to others who openly
practiced hatred toward blacks. It took federal legislation to override the
abusive state grand juries and to begin to uphold civil rights.
As the grand jury system progressed, it began to more and more reflect the
local or national bias with respect to various issues. Pressure from the Executive Branch also influenced grand juries to take a strong stance against
groups labeled dangerous.
In 1948, during the time of the “Red Scare”, a grand jury in New York
indicted Communist Party officials for violation of the Smith Act which
“prohibited advocating and teaching the legitimacy of overthrowing the
government” (Clark, 1975, pp. 24-25). In both Denver and Los Angeles,
grand juries also called members of the Communist Party as witnesses.
They were told that they were not facing any charges and that being a
Communist Party member was not a crime. Some members attempted to
use their Fifth Amendment privilege to not incriminate themselves and
were jailed on contempt charges. As many of these same witnesses were
later indicted, their use of the Fifth Amendment was well founded.
During the 1960’s there is ample evidence showing the close relationship
the U. S. Justice Department had with grand juries. A glance at the Nixon
administration illustrates this very point. Nixon is reported to have said in
1968 at a private meeting of Republicans prior to his election that he was
personally going to “take charge of the Justice Department and run it” (p.
32). Using the Justice Department and grand juries as his tool, so-called
enemies of the government were often indicted and information was
gained about these perceived threats to the nation state.
The Justice Department has also has used grand juries in order to enable indirect illegal wiretapping (p. 42). According to the law, a defendant
cannot object to evidence that was seized in violation of the constitutional
fights of another individual. An objection can only be made when the
defendant has evidence seized in violation of her/ his own constitutional
rights. The government wanted witnesses who did have their rights violated
to give testimony against others. The use of the grand jury was a way to get
this accomplished.
PAGE 5
There have been charges by many that a chief objective of grand juries is
to disrupt organizations deemed anti-American or a threat to national
security. This has not only occurred by jailing people on contempt charges
but also by disrupting the cohesiveness of groups by instilling fear which
prevents them from effectively opposing governmental policies.
The presence of grand juries in combating social movements in this country is apparent in various avenues. “Grand jury activities and investigations
have targeted political dissenters, escaped slaves in the 1850s, movements
involving causes deemed anti-American, and, more recently in the 1970s,
the Vietnam Antiwar and Women’s Movements” (National Lawyers Guild,
1997, p. viii). The American Indian Movement (AIM) has been another
target of government repression through grand juries. In 1973, goverment
agents created some 316, 000 investigative file classifications on those
involved with the Wounded Knee incident. A government report stated,
“The events gave [immediate] rise to approximately 562 arrests, Federal
grand juries indicted 185 persons and there was a total of 15 convictions,
a very low rate considering the usual rate of conviction in Federal Courts,
and a great input of resources in these cases (Churchill & Wall, 1990, p.
176).”
The scope of investigations undertaken by grand juries continues widen.
White Collar crimes and political corruption continue to be two targets the
system loves to boast about. Yet, as history has shown the reality of grand
juries today may be far from what was originally intended in their inclusion
into the Fifth Amendment years ago.
What Constitutes a Grand Jury?
In federal courts the grand jury is a panel of twenty-three citizens that can
operate with a quorum of sixteen. For an indictment to be returned there
needs to be twelve votes. The number twenty three dates back to the time
of the Grand Assize where twenty three individuals were first picked for
service from the county.
In state grand juries, the number of jurors can greatly differ but none exceed twenty three. In Oregon, Iowa, Montana, and Utah for example, seven
members make a valid jury. Yet, in Virginia the number drops to five and in
Tennessee twelve citizens are needed for a grand jury panel.
All grand juries have one common function which is “to determine if there
is sufficient evidence to warrant putting the subject of an investigation on
trial, where the question of guilt or innocence can be determined” (Frankel
& Naftalis, 1977, p. 19). The power that is enjoyed by a grand jury is far
beyond that which occurs in a normal trial. The grand jury is allowed to
compel testimony of witnesses and the production of physical evidence.
Grand juries must not be used only to gather evidence for a civil lawsuit. A
civil action may be brought by the government but it must be in accordance
with criminal measures.
PAGE 6
Two months later, on December 12, 1 received two more subpoenas at my
personal residence. One was for me to testify again and the second was
for the production of materials and/ or objects belonging to Liberation
Collective that relate in any way to the now three incidents listed on the
subpoena; (1) The November 29-30, 1997 trespass, burglary and fire at the
U. S. Bureau of Land Management Wild Horse Corral in Harney County,
Oregon, (2) The July 2 1, 1997, trespass, burglary, and fire at the Cavel
West, Inc., facility in Redmond, Deschutes County, Oregon; and (3) The
May 3 0, 1997, trespass, burglary and “mink release” at the Arritola Mink
Farm, in Mt. Angel, Marion County, Oregon. These three incidents alone
totaled over $1. 5 million in damages.
Once again the date for my appearance was less than a week away so I
called the Assistant U. S. Attorney and asked for a delay to obtain counsel.
I was denied this delay without hesitation over the phone. After putting my
request in writing, I faxed it to the U. S. Attorney’s office again asking for a
delay. This too was denied.
On December 16, one day before I was commanded to testify, I put forth a
motion to the court to disclose illegal electronic surveillance and to quash
the subpoena. My interest in doing this was to attempt to learn whether or
not illegal electronic surveillance had been used to gather information for
the subpoenas. Early the next morning, the Court Clerk called and told me
my motion had been denied by a Judge that very morning and I was still
commanded to appear.
The same day, another demonstration was held outside the U. S. Courthouse in Portland. I had made up my mind that I would not even go into
the courthouse due to the continued harassment I was feeling from the
situation. At 11: 00am, a ATF agent came outside and asked me if I was
planning on going up to testify. I said I was not. He went back in only to
reappear ten minutes later when he informed my that the Assistant U. S.
attorney had commanded me to testify. The ATF agent then asked me
again if I was going to testify. I told him I was not. The agent went back in
the courthouse and almost immediately came back out with a U. S. Marshal. Together they proceeded to arrest me, placing me in handcuffs claiming I was going to be held in contempt of court.
I was taken to the second floor and into a large room where the Assistant U. S.
Attorney, U. S. Marshals, an ATF agent and a court reporter were all present.
Soon a Judge entered the room and still in handcuffs I was told to sit down at a
table near the Assistant U. S. Attorney. The Judge then asked me why I was refusing to testify. I told him that I had three reasons which I felt were more than
adequate for my refusal. The first was that I had only been given five days, two
of which were on the weekend, to obtain and consult and attorney. Secondly, I
had put forth a motion the day before asking for disclosure of illegal electronic
surveillance and I felt that should be dealt with before proceeding. Finally, I had
been in the hospital a week and a half prior with paracarditis and I was in no
condition to sit through another grand jury inquisition.
PAGE 11
ing full well that this could be challenged at any time. After an hour or so
questions began to come
from the grand jurors themselves.
The first thing I noticed about the grand jury was that it was entirely white,
hardly a accurate representation of the Portland area. (Compared to other
cities, Portland is an extremely white town but definitely not to the extent
represented by that jury). Secondly, each individual seemed to be over the
age of forty and many quite older than that. I had no knowledge of what
was said about me prior to my appearance but it was clear by the tone of
the grand jurors questions that they considered me guilty of some sort of
serious crime before I ever walked into that room.
To roughly seventy-five percent of the questions I took the Fifth Amendment and remained silent. The questions I did choose to answer related
directly to the philosophy of the social movement and information about
my organization, both of which were already public knowledge.
The grand jury seemed more interested in arguing with me over the ethics
of a particular social movement rather than focus on their task at hand, investigating the two crimes that had occurred. I was frequently cut off when
trying to answer ideological questions and often snickered at when offering
my viewpoint on a given issue. It became extremely frustrating especially
when I noticed two jurors dozing off in the back row. It was comforting to
know that tax dollars were spent to have these individuals sleep during a
court proceeding.
Frankel and Naftalis in The Grand Jury; An Institution on Trial, comment
on the possible atmosphere inside the grand jury room, “The opportunity
to bully, to harass, to intimidate is surely present in the grand jury room,
and it has surely been exploited on too many occasions” (1977, p. 53). This
statement which should be unthinkable, was a definite reality where I was
concerned.
After an hour and a half of questioning, I was led outside the room and
told to wait in the hall while the Assistant U. S. Attorney spoke with the
grand jury to determine if there was any interest in asking more questions.
I was soon taken back inside where I sat through another fifteen minutes
of questions, again exercising my Fifth Amendment right.
At this point I was told that I was finished for the day and reminded that
I could be called back at any given time to face more questions. A U. S.
Marshal then escorted me down the elevator and out of the budding. I did
not expect to be released that day or really for a length of time as I figured
my Fifth Amendment protection would be challenged and I would be held
in contempt. As I walked out the doors of the courthouse my mind was in
a complete daze. The psychological stress that was invoked in that hostile
atmosphere was simply unimaginable, especially from individuals who
consider themselves to uphold the law.
PAGE 10
An individual who is called to testify before a grand jury is required to answer all questions without the Fifth Amendment privilege. Individuals who
choose to take the Fifth Amendment and remain silent during questioning
to avoid self incrimination may at any time be given immunity. At this time
the individual is taken before a judge in an immunity hearing. Once the
immunity Is given, individuals may not refuse to answer any questions by
the grand jury or be subject to imprisonment on contempt charges for up
to the remaining length of the grand jury.
The grand juries are run by the United States attorney and assistant U. S.
attorneys, local state attorneys, or state attorney generals and their staffs. It
is up to the prosecutors to decide what will actually be the focus of investigation as well as who will be brought before and even indicted by the grand
jury. In theory the grand jury can refuse to indict, but as standard practice
grand juries usually follow the views and recommendations set forth by the
prosecutors.
Grand juries operate largely behind closed doors in secrecy unknown to the
public. The reasons for this were summarized by the Supreme Court,
“(1) To prevent the escape of those whose indictment may be contemplated, (2) to insure the utmost freedom to the grand jury in its deliberations-, and to prevent persons subject to indictment or their friends from
importuning the grand jurors-, (3) to prevent subordination of perjury or
tampering with the witnesses who may testify before [the] grand jury and
later appear at the trial of those indicted by it; (4) to encourage free and
untrammeled disclosures by persons who have information with respect
to the commission of crimes; (5) to protect [the] innocent accused who is
exonerated from disclosure of the fact that he has been under investigation,
and from the expense of standing trial where there was no probability of
guilt” (Frankel & Naftalis, 1977, pp. 23-24).”
Witnesses for the most part are not allowed counsel inside the grand jury
room. This is due to the proceedings being considered “ nonadversarial”
and “the witness is deemed to have the maximum protection that he needs
because he can invoke his fight not to give testimony that is incriminating” (Clark, 1975, P. 70). Yet this reasoning is a bit deceiving since the Fifth
Amendment fight to silence can be challenged at any point. While the law
against counsel is absolute in federal cases, there are a few states that do
allow representation inside. Witnesses are allowed however to consult with
an attorney outside the grand jury room at reasonable occurrences regarding the questioning.
There are two main components to be considered when determining if
someone is to be indicted, The first is whether or not a crime has been
committed. The second asks if there is “probable cause” to believe the
individual under investigation committed the crime. As simple as these two
maybe, the area of grand jury investigation may be extremely scattered.
PAGE 7
As far as the selection of the grand jury goes, before the Federal Jury Selection and Service Act of 1968, most juries were formed by the “key-man”
system. This process consisted of the clerk of the court or jury commissioner in a particular district or state who would contact men who had a high
status in the community and request that they recommend possible jurors.
Obviously with this sort of method in place, juries were hardly an accurate
representation of the people at large.
The Jury Selection and Service Act of 1968 states “the policy of the United
States that all litigants in Federal courts entitled to trial by jury shall have
the night to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes” (p. 41). Voter registration lists are used to randomly select jurors in
these federal cases.
Traditionally, grand juries may convene for up to eighteen months and
their meeting occurrences may vary from weekly to monthly. Once a grand
jury term has expired and the investigation has not concluded, a new grand
jury may be convened to continue.
Attempts at Abolition
On September 1, 1933, grand juries were formally abolished in England.
After years of rejection both from members of the legal system as well as
common laypersons, this structure which served as a model for U. S. grand
juries now was thought of as ineffective and largely useless. The London
Times was in support of this move printing that the grand juries were
expensive and inefficient. English citizens realized the tax saving they could
have if the grand juries es were gone and naturally then supported the ban.
Efforts during this time were also underway in the United States but
without the same success. The American Judicature Society in 1920 advised
delegates at the Illinois constitutional convention that grand juries were of
little value and that they delayed the courts. The State’s Attorney’s Association of Illinois was in support of this notion and also recommended that
the grand jury system be abolished.
Opposition to the grand juries was fought by an ever increasing force largely headed by the Grand Juror’s Association of New York which published
The Panel, a pro-grand jury periodical. The purpose of this publication was
to try to explain the importance of grand juries to the general public. Public
sentiment for grand juries began to increase as propaganda related to crime
and national security suggested they were the right tools for the job.
Today grand juries are no less common, investigating corruption in the political
structure as well as perceived threats to the stability of the status quo. The use of
them as tools of harassment is ever present in various issues still considered by many
to be anti-American. Opponents of the grand jury in the U. S. still argue they are
costly and extremely inefficient. Whereas prosecutors and other supporters will
defend the grand jury system as a necessary part of the justice system.
PAGE 8
Abolishing the grand jury would definitely eliminate some financial costs
such as the payment of grand jurors, witnesses and personnel who run the
system. It would also reduce the time that prosecutors and law enforcement
spend going through the motions to present the case to a grand jury before
getting approval.
The main loss to the prosecutor would be the subpoena power. Yet there is
an extreme amount of criticism regarding whether prosecutors should have
this much power in the first place. Obviously prosecutors will defend the
role of grand juries and the related subpoena power at the same time others
may well question this entire system.
Grand Juries … An Inside Look From Personal
Experience 1997 / 1998
1 was first subpoenaed to testify as a witness before a federal grand jury in
Portland, Oregon in September 1997. At that time I had spoke out in support of two acts of eco-sabotage committed in Oregon by an underground
organization known as the Animal Liberation Front (ALF). The organization I worked with at the time, Liberation Collective, had received two
communications from the ALF claiming responsibility for these occurrences. After many visits by the F.B.I.. and the Bureau of Alcohol, Tobacco,
and Firearms, a subpoena was finally issued to me to give information to
aid in the investigation of the crimes.
The subpoena issued to me commanded my appearance in Federal Court
less than a week later. After realizing this I immediately called the Assistant U. S. Attorney in Portland and asked to have the date delayed so I
could have time to obtain and consult an attorney. My request was granted
and the proceedings were delayed for a month.
Early on an October morning, on my way to the U. S. Courthouse, I
delivered a formal letter of objection to the U. S. Attorney’s office on the
grounds that I was being harassed. A protest against the grand jury was
held outside the courthouse and attended by forty or so individuals angry
at the secret government proceedings which were about to occur inside.
At 11:00 1 went inside confident that the grand jury, being members of my
local community, would be able to see I had done nothing wrong and that
the U. S. government was simply grasping at extremely small straws. U. S.
Marshals immediately led me into a waiting room filled with F.B.I., A.T.F.,
and other government agents. Shortly thereafter I was taken into another
room and led up to the front where I was told to sit. In front of me were
twenty-three members of the grand jury. To my left was the Assistant U.
S. Attorney, to my right the Court Reporter and three forepersons of the
grand jury.
As soon as I sat down the questioning began from the Assistant U. S. Attorney. By the time the third question was asked I began to take the Fifth
Amendment and use my right to protection from self incrimination know-
PAGE 9
E
S
S
A
Y
A GRAND JUROR SPEAKS
The inside story of how prosecutors always get their way
By Gideon Lewis-Kraus
F
or four weeks last spring—three hours
a day, five days a week—I served, along with twenty-two other New York
County residents, as a member of a grand jury. We met each morning on a high
floor in the Criminal Courts Building on Centre Street and performed our role
as a minor procedural hurdle to one or another of Manhattan’s 500 assistant
district attorneys. Very few of the lawyers carried bags or briefcases, so they invariably seemed on the verge of slapstick catastrophe as they schlepped and
stacked their distended accordion folders of material evidence and annotated
statutes, questioned their witnesses, called forth arresting officers, clarified the
underlying legal definitions—the meaning of “to sell,” to our surprise, includes
“to give”—and asked us to vote on whether there was reasonable cause to believe
that an alleged perpetrator had committed a crime.
I completed my service before Michael Brown and Eric Garner were killed,
before the actions of grand juries became a focus for pundit and protester alike.
In the wake of the refusals of grand juries to indict the police officers who killed
Brown and Garner, the one thing most people have learned about grand-jury
proceedings is that they follow the lead of the prosecutor. No case is mounted
by the defense; the state’s version of events is the only story on offer. As I saw
firsthand, this makes the prosecutors singularly powerful narrators.
One of the first stipulations in the New York State grand-juror’s handbook is
secrecy, the violation of which is a Class E felony punishable with imprisonment.
That section reads, in part:
The purposes of grand jury secrecy are to obtain the full cooperation of the
witnesses who appear before the grand jury, to permit grand jurors to make decisions free from outside interference, and to protect an innocent person who
may be investigated but never indicted.
For that reason, I won’t reveal the names of the people involved in the
crimes I will discuss, and I’ll change the names of my fellow jurors.
Because of the secrecy requirement, those who haven’t served on a grand
jury have little idea of the closed circuits of that cramped, wood-paneled room.
But if the actions of jurors like me can bring thousands of
people into the streets to protest, it seems worth risking a felony
charge to describe the arguments and expectations of the chamber.
F
or the most part, we heard evidence in the form of witness testimony—
from the victims or from the officers who’d investigated the crime. On three
occasions, however, we watched videos; we looked forward to these respites
from the dull routine of buy-and-bust drug cases as though they were field trips.
One of these videos documented a crime so distinctive and well publicized
that I’m unable to disguise it here. That one was, in any case, uncontroversial.
We voted unanimously to indict, as we usually did, as we’d been encouraged,
perhaps even pressured, to do.
Gideon Lewis-Kraus is a contributing editor of Harper’s Magazine.
ESSAY 41
WE VOTED UNANIMOUSLY TO
INDICT, AS WE USUALLY DID, AS
WE’D BEEN ENCOURAGED, PERHAPS
EVEN PRESSURED, TO DO.
42 HARPER’S MAGAZINE / MARCH 2015
The other two videos showed security-camera footage. The first, in the waxygreen monochrome we associate with antiquated night-vision accessories, was
taken by a camera mounted outside a Washington Heights corner store. The
time stamp let us know that it was just after three in the morning on a Tuesday
in March. Two men, one much taller than the other, emerged from the bodega.
It looked, at first, as though their arms were linked in the solidarity of a late-night
frolic. After a moment, though, it became clear that the shorter one was grasping the elbow of the taller one, who was struggling to break free. The tall man
pulled away, pivoted back to face his shorter companion, and pushed him in the
chest. The short guy fell backward against the bodega’s glass door, wheeled
around, and plowed headfirst into the tall guy’s gut. At this point, an enormous
aproned employee of the bodega exploded out of the store and fit himself between
the two fighting men. He easily pushed them apart. The video had no sound,
but it was clear even through the grain and the pallor that he was shouting at
the short man to be on his way.
The short man left, the employee and the tall guy reentered the bodega, and
the door swung closed. The unvarying frame presented the pale-emerald glow
of the shop at night. We watched the late-hour scene for ten minutes. (The
court’s video technician had left the room, and no one stood up to fast-forward.)
It had an almost hypnotic quality, and I found it hard to turn away when I knew
there was more action to come. Members of the grand jury—the ones who had
made it clear what a burden this had been for their jobs in finance or marketing—nevertheless illicitly checked their email. The video recaptured the general attention when the short man came back into view and reentered the store.
My neighbor Louis elbowed me. Louis was an unemployed pipe fitter and
amateur cartoonist who had lived his entire life within a three-block radius of
125th Street and Frederick Douglass Boulevard. He had become the unofficial
ambassador of the loose little obstructionist bloc that four of us had formed. It
had been three weeks, and we had yet to defeat an indictment. We had, on two
occasions, come close.
“He went to get his gun,” Louis said.
The short man, the tall man, and the employee burst back through the bodega doors onto the street. Their quarrel looked increasingly unstable. It was
hard to tell, from the dim, distant footage, who was pushing whom and who was
reaching for what. The fracas ended, and the tall man walked east, out of the
frame, down the block. The short man stepped out of the frame to the south,
and then, as if rethinking a rash decision, stepped back into the frame, reached
into his coat, and in one smooth motion pulled out his gun and shot off into
the air in the general direction of the tall man’s exit. We could see a tiny green
flash when the gun discharged.
We had been asked to consider three charges against the defendant: criminal
possession of a weapon, criminal use of a firearm, and attempted murder. On the
first two counts, there was no discussion. We all raised our hands to indict in
silence. On the third count, we were far from consensus. The grand jury was
divided along lines that had become familiar.
There were jurors who thought that our role was to rubber-stamp indictments,
who took at face value the prosecutors’ instructions that reasonable cause, the
burden of proof required to formally accuse someone of a crime, is a very low
standard, that the subsequent trial would establish the facts “beyond a reasonable
doubt,” that all extenuating circumstances would be considered as part of the
due process of that trial. And then there were those who knew that 90 percent
of felony cases never come to trial, that the assistant district attorneys often seek
the highest possible charges to give themselves maximum leverage in the pleabargain negotiations to follow, that the suggestion that extenuating circumstances would ultimately be aired and thoughtfully considered by a judge and
trial jury was a sop. What goes on in grand-jury chambers is supposedly the
prelude to the trial itself, but the major considerations of justice—the decision
by which, say, a mere possessor of drugs will be accused of being a drug dealer—
were by and large carried out there, shuffled into the system at the point where
the evidentiary bar was lowest.
“But he shot a loaded gun,” Amy, the head rubber-stamper, said, shaking her head.
She couldn’t understand the friction; she found Louis impossible. By the halfway
point of our term she could barely look at him. Since she couldn’t possibly believe
that the faster we voted on these cases the earlier we’d get to leave—the faster we
voted on these cases, the more of them we’d see—she must have identified with the
process so much that she had taken up its efficiency and alacrity as a personal cause.
“I know,” Louis said. “I’m not arguing with you about that. I’m just saying this
guy ain’t no attempted murderer.” He gripped his chair and pushed himself to
his feet, then unsteadily descended the steps to the front of the room, where he
pushed aside the heavy testimony table.
“Let me show you something we all know in my neighborhood.” He turned
his body to the side and raised his arm, fast and loose, offhandedly pulling a
pretend trigger one time as he swung the imaginary firearm a good forty-five
degrees up from horizontal.
“That,” he said, “is a warning shot.” He paused.
“And this here is attempted murder.”
He turned to face Amy head-on. She recoiled. He extended
his right hand and stabilized it with his left. “Pop pop pop pop
pop pop.”
He pulled the imaginary trigger until his imaginary clip
was exhausted.
“That’s attempted murder. And right here we have a decision
between sending this guy to prison for three years for criminal
possession of a weapon, or sending him to prison
for ten and turning him into an attempted murderer.” The grand jury voted to indict.
LOUIS HAD BECOME THE
UNOFFICIAL AMBASSADOR OF
THE LOOSE OBSTRUCTIONIST BLOC
THAT FOUR OF US HAD FORMED.
O
ver the course of sixty hours of service, we voted on
more than a hundred cases. The number of times we refused
to indict could be counted on one finger. We were simply not
expected to dismiss charges.
This had been true from the very first case we heard, a robbery. A
cop gave testimony that she’d seen, from the back of an unmarked
police car, two visibly intoxicated youths emerging from a midtown
bodega. She told her sergeant to follow the young men, who approached
a woman at the next intersection and tried to steal her headphones
and her purse. A short time later, two different cops, who were patrolling on foot, apprehended the men under some scaffolding after a short
altercation. We heard testimony from the first officer, from the victim
of the theft, and from the officer who made the arrest. Before the arresting officer was dismissed, the assistant district attorney asked if there
were any questions from the grand jury. She swept the room with a
desultory glance, missing the raised hand of Louis, who had already
established himself as our skeptical voice of reason. Louis waved again,
more aggressively this time, and she came over and bent down to hear his whispered
question. In New York State, members of a grand jury are allowed to question witnesses, but, as the handbook puts it, the prosecutor “reviews grand jurors’ questions
for witnesses and permits only those that are relevant and legally proper.”
He whispered loudly enough for half the room to hear him. “What I want to
know is, could the arresting cop smell alcohol on the men’s breath during their
little scuffle?”
The A.D.A. exhaled slowly as she stood up. She addressed the officer. “A
member of the grand jury would like to know if you smelled alcohol in the
process of making your arrest.”
The cop shook his head no, not to his recollection.
Most of the jurors sighed. This was going to be a long month, and this guy
seemed to think he was on Law & Order. (The confusion between reality and
television was, to be fair, further confused by the state’s Office of Court Administration: the Ken Burns–style orientation video we’d just watched was
narrated by Sam Waterston.)
Illustration by Richard Mia
ESSAY 43
“THE QUICKEST WAY TO KNOW
YOUR WAY AROUND THE DETAILS
OF THE CRIMINAL-JUSTICE SYSTEM
IS JUST TO BE A PERSON OF COLOR,”
SAID LOUIS.
The A.D.A. looked back at Louis. He began once more in a stage whisper.
“What I’m trying to understand is: How did the first cop see, through the back
of a tinted cop car, that these young fellas were under the influence of alcohol?
It seems to me that maybe she was racially profiling them.”
The A.D.A. was losing her patience. She stage-whispered back, “Those are
the sorts of procedural questions that will be addressed at trial. Right now, you
only have to decide if there’s enough evidence for reasonable cause to believe
that a crime was committed.”
She dismissed the witness, instructed us on the law, and left the room.
The secretary read off the charge and asked for votes to indict. Twenty-two of us raised our hands. Louis looked
around the room, shook his head, and raised his hand, too.
T
here was one time the obstructionist bloc held sway. It was one of the
last cases we heard, and involved the third of the three videos. It was also the
only time in our four weeks that we heard the testimony of an alleged perpetrator.
The security footage, in color this time, showed the foyer of a popular athleticapparel shop downtown. The alleged perpetrator had been arraigned on multiple counts of shoplifting over a period of several months.
The time stamp read 7:00 p.m. on a Thursday, a busy time for the store. The
defendant walked in through the double glass doors, approached a low table,
withdrew a black duffel from his overcoat, expanded it to full size, and in one
practiced motion swept a pile of jackets into the bag. The jackets were black,
with white zippers. He swung the full duffel onto his shoulder and, without
pausing to look around, walked calmly out of the store.
There was no disputing that the man had been shoplifting. The many counts
of petit larceny—goods in the amount of $750 on the tenth of February, in the
amount of $875 on the thirteenth of March, and so on—saw rapid up-and-down
votes. The question, however, was about the charge of grand larceny. The statute defined grand larceny as the theft of more than a thousand dollars’ worth of
goods. The jackets in the video, we were told by the store’s general manager, cost
$99 each, and the store alleged that the man had taken fifteen of them.
The alleged perpetrator had, despite his counsel’s warning that it was unlikely to do him any good, appeared in front of us to testify on his own behalf.
As the man came into the grand-jury chamber, Louis turned to me.
“I’ll tell you right now what he’s going to say. He’s going to say he knows the
difference between the petit charge and the grand charge. He’s going to say he
knows that the petit charge carries a maximum charge of one year and he probably won’t serve. But that grand charge, man, that’s two to four, and he’ll sure
enough serve it.”
“Louis,” I asked, “did you go to law school or something?” By that point in our
service Louis and I were sharing bad cart-coffee during breaks. “How the hell
do you know this stuff with this degree of granularity?”
Louis looked at me. “In my community, everybody’s got a cousin or a brother
or a nephew who’s been there. We all know this stuff. The quickest way to know
your way around the details of the criminal-justice system is just to be a person
of color. You learn real quick.”
The man was sworn in. All he wanted to say, he explained, was that he didn’t
steal fifteen jackets. He stole ten jackets. He stole ten jackets—and here his
lawyer tried to dissuade him from an admission of outright guilt, to no avail—
because he knew that ten jackets times $99 a jacket was $990, and $990 was less
than $1,000. That was all he wanted to say.
He left the room, and we watched the video again. We pressed our faces up
against the TV screen, trying to count the white zippers. We couldn’t get past
seven. The secretary called for a vote on grand larceny, and, for the first time,
we voted to dismiss a charge. We relayed the news to the A.D.A.
The A.D.A. returned. She was dropping the grand-larceny charge and presenting a slightly different grand-larceny charge, under the legal theory that his
aggregate thefts had a value of more than $3,000.
n
We had, as ever, no choice. We voted to indict.
44 HARPER’S MAGAZINE / MARCH 2015
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