“A grand jury would indict a ham sandwich, if that's what you wanted.”
~ New York State chief judge Sol Wachtler
About a dozen or so years ago, I had the instructive misfortune to be called for Manhattan grand jury duty. To this day, though, it has armed me with plenty of anecdotes for any sort of “that's the way the system works” conversation. Once you see how the sausage of justice gets made in the courtroom, you can never really unsee it, and that's not a bad thing. The grand jury process – and its failures and possible remedies – is obviously central to the Michael Brown and Eric Garner cases, but in my opinion hasn't received nearly enough attention. Let me draw on some of my own experiences to illustrate why this is the case, and argue why any meaningful response to Brown, Garner and others must, at least for a start, be sited within the phenomenon of grand jury.
As context, New York City is one of the few cities that maintains continuously impaneled grand juries to maintain the flow of indictments that feeds the criminal justice system. When I served, there were four such juries, two of which were dedicated exclusively to drug cases. Fortunately, I was selected for one of the other two; after all, variety is the spice of life. During our month-long tenure of afternoon-shift service, we heard 94 cases, and we returned indictments, if I'm not mistaken, for 91 of those. For this service we were compensated $40 per day, which, in a fit of self-serving civil disobedience, I refused to report on my income tax return.
Keep in mind that the purpose of the jury is two-fold: to establish that a crime was committed, and that the person under indictment had some involvement with said crime. This involves the mapping of an often messy reality onto the abstract but finely delineated nature of criminal statutes. To achieve this, the prosecutor – almost always a fresh-faced Assistant District Attorney (ADA) seemingly just out of the bar exam – would present just enough facts to the jury to ensure probable cause for both the crime and the person charged with said crime. The evidence may include testimony from officers, experts or other witnesses, and it ought to be noted that probable cause is a much lower standard of proof than what petit juries encounter in trials, which is the beloved “proof beyond a reasonable doubt.”
Note that I haven't said anything about the defense. That's because we saw not a single defendant for any of the 94 cases we heard over the course of December 2003. During our induction into grand jury, we were assured that defendants and/or their attorneys had every right to participate in the indictment proceedings. At some point people on the jury began asking if we would ever see a defendant and the bailiff said it was highly unlikely. The reason for this is our first indication of the particular kind of sausage-making that goes on within the criminal justice system: most cases end in plea bargains. Defense attorneys generally wait for the indictment to find out how incriminating the evidence is, and then act accordingly. If the indictment is backed by strong evidence, the horse-trading around cooperation begins, in hopes of a reduced sentence. Beginning in the 1980s, this was used as a comprehensive strategy by the New York DA's office to dismantle the Mafia: arrest the street-level operators and flip them, one by one, in the hopes of moving up the food chain. Rinse, lather, repeat. More recently, they have tried the same tactic on insider-trading cases, although some have proven tougher to crack than others.
Following an indictment, defense attorneys will counsel their clients to go to trial only if they think they have an exceptionally good chance of beating the rap, if not on the facts of the case then by virtue of a sympathetic judge, and so on. Like all lawyers, defense counselors look at their field of play in terms of scenarios and probabilities. In this sense, the pursuit of “justice” is not a pursuit of truth, but an exercise in risk management, negotiation and compromise. The facts, such as they might be, are there to serve those ends, and not the other way around. This is very important to keep in mind when we come to consider the Brown and Garner cases.
“I'm telling you I've got all the facts here! Well? Say something!”
~ Juror 3 (Lee J. Cobb)
This brings me to the other essential point: recall that we as jurors were instructed to “map” certain statutes onto actual events and people. How do you go about doing this? As noble as “a jury of your peers” may sound, I hope that I am never in a position to be judged in this way. For the law per se is not a simple thing, and this sort of mapping exercise guarantees plenty of ambiguity along the way. For a grand jury that is essentially treated as an indicting machine, a broad variety of statutes come into play. And in the interest of securing an indictment, the DA will throw as many charges as possible against the suspect, in the hopes that at least one will stick.
Fortunately, the state is kind enough to provide a guide to navigating the complexities of statutory law: the prosecutor himself. If you think this is a conflict of interest of the highest order, you would be right. You would also have no choice in the matter. Of course, all the ADAs we dealt with were unfailingly polite and more than willing to read out the relevant statutes as many times as was necessary, but keep in mind that they are in the room to get their indictments. They regretted to inform us that they could not help us in interpreting the evidence in relation to the statute, only the statute itself. That, putatively, was our sacred duty.
So what did I learn while I was a grand juror? For one thing, the cops can pretty much arrest you for anything. Secondly, the people who get busted proceed to get themselves even more busted. Examples include: if your friend is driving you around in his newly stolen car, don't have a stolen handgun on your person (on the other hand, the two may have had some shared instrumentality, which I suppose is reasonable). But you should definitely not have a rock of crack cocaine in your pocket while you jump a subway turnstile. (Of course, if I'd been white while jumping that particular turnstile I probably wouldn't have been searched. Just saying.)
Thirdly, the cops know the law way better than you, and use it to their advantage. Example: a group of four guys are walking down the street, and the police observe two of them conducting a drugs-for-cash transaction. Shortly afterwards, all four get into a car. The cops then proceed to bust them, because the law says that anyone in a car with drugs in it can be charged for possession. Why settle for two collars when you can have four?
Fourthly, cops lie. A lot. We had to put up with some extraordinary claims made by officers, some of whom testified anonymously, in order to protect their undercover identities (it's interesting what anonymity does to your perception of whether someone is telling the truth). You were on the roof of a sixth-floor walkup without binoculars and you saw a drug deal go down four city blocks away? For real? The suspect didn't have any stolen goods on him when he was arrested but somehow had them once he emerged from the police van? No kidding! On the few occasions that we were confronted with particularly egregious lies we threw out the indictments with relish. But more often than not we were left seething amongst ourselves, during the deliberation period that was the only occasion when we were left alone as a group. Just because one cop lied at one point didn't invalidate the entire case if there was an overwhelming amount of other evidence, so in this way the lying cop gets a bye. He knew it, we knew it and he knew that we knew it. It's also worth mentioning that even if we disagreed with the law itself, we nevertheless had no choice but to indict, if the “evidence” was strong enough, as with the example of the four guys in the car above.
Eventually, in the course of our daily proceedings a curiously adversarial dynamic developed. As a jury, we did our best to establish a solid understanding of what transpired for any given case. But much of it felt like being in Plato's cave. We only saw what the prosecutors and police wanted us to see, and would further guide us, as much as possible, in how to see it. Due to the confidential nature of the proceedings, note-taking was prohibited. And without the counterbalancing presence of a defense counsel, or of the salutary effects of cross-examination, the end result was, more often than not, a shrug of the shoulders and a vote to indict.
To my further dismay, this happened with increasing frequency, especially as we approached the Christmas holidays. Unlike the zero-sum game that is a petit jury trial, there is a further dilution of responsibility, that goes something like this (and here I am pretty much quoting a fellow-juror) “Well, an indictment isn't that big of a deal, the defense attorney can figure out what to do with it next, and at the worst the guy will get a fair trial.” What this indicates is more proximity bias that anything else: the first time you raised your hand to indict someone it was a very big deal, but now that you've done 60 of them and you're really thinking about having to see your in-laws again, it's really not such a whopper.
In general, there is a modicum of intellectual rigor required to attend to this process with any sense of awareness and responsibility. And yet we had jurors whose English was far below the standard needed to follow legalese; who probably hadn't had to think analytically about anything in decades; or who just plain didn't care, or rapidly reached that point. If there is anything accurate about Reginald Rose's “12 Angry Men,” whose quotes and stills pepper the present article, it is the fact that a jury's seats are by no means guaranteed to be occupied by reasonable, disinterested citizerns (thank goodness Henry Fonda was one of them). To this day, if there is a better reason as to why a liberal arts education remains of vital importance to our society, I cannot think of one.
“Look, you know how these people lie!
It's born in them…they don't know what the truth is!”
~ Juror 10 (Ed Begley)
If the purpose of the system is to generate indictments, then the system works really well. Hence the well-known quote from chief justice Wachtler about the indictability of ham sandwiches. It's not so much the masterful rhetoric of the prosecutor, the infallibility and selfless dedication of the police, nor the relentless pursuit of truth. It's the fact that the incentives are all lined up correctly to produce indictments. The cops provide the evidence and the warm bodies, the prosecutors the indictments. Each depends on the success of the other.
This extends beyonds the hermetic enclosure of the courtroom, since prosecutor is an elected position, and must do his level best to gain the endorsement and support of the police union. (If anyone doubts the importance of the union in the eyes of a cop, please consider the recent stairwell shooting of Akai Gurley, where the two patrolmen in question were MIA for the first six minutes following the shooting. It turns out that Officer Liang, who allegedly fired the shot, was texting his union rep). The grand jury, as blind as Justice itself, stammers and dodders its way through the mess, eventually just glad to get it over with. Not quite a rubber stamp, but not too far off, either.
Now, all of this falls apart in a grand way when the tables are turned and it is the cops that are under indictment. Suddenly, the whole system of incentives is under threat of short-circuiting. Because, if I have sketched it out well enough, the point of the system is not the disinterested pursuit of justice; nor is it the ongoing process of risk management, negotiation and compromise; but rather it is the perpetuation of the system itself. In this sense it is no different from any other bureaucracy. In order for the system to remain coherent and orderly, indicting cops is to be avoided at all costs.
How do the participants extricate themselves from this? As usual, The Onion is on it with a handy guide. But in fact the answer is even simpler. One thing that may have been only implicit in the above description I should now make explicit: in none of the 94 cases we considered did the DA fail to recommend charges. Remember that an indictment is a mapping exercise. It is inconceivable to take a group of lay people and just point them to a book of criminal statutes. And yet, thanks to the extraordinary release of the complete transcript of the Darren Wilson indictment, we know that this is precisely what happened. Remarkably, this action seems to have been within the DA's discretion. Moreover, in the few pages that were released concerning the Garner case, there was no mention of what charges – if any – were recommended to the jury. From viewing the videotape, it's pretty incredible to think that Daniel Pantaleo, the officer in question, could not be charged, at the very least, with involuntary manslaughter.
Now, we can talk all about the latitude that use-of-force laws grant in the courtroom, etc etc, but if the jury isn't even told what statutes might possibly apply, it's pretty uncertain that they will come to agree on anything. As an example, consider the fact that, during our grand jury induction, we were told that not only did we have the right to strike down the charges recommended to us by the DA, but we also had the right to search out other statutes and recommend them to the DA as charges instead. Not that we ever did that – safe as houses, we were.
Still don't believe the lengths that the system will go to protect itself? Consider another, fairly unpublicized detail in the Garner case. If you've seen the video (and, truth be told, we don't know if or how much of it was seen by the grand jury), you'll notice that Pantaleo isn't the only cop around. What about those other guys? The five-or-so other cops involved in taking Garner down were all granted immunity from prosecution in return for their testimony. Obviously, the DA was wasting immunities, since their testimony was such shit that he couldn't get an indictment from cherry-picking what those five eyewitnesses saw. And Pantaleo, like Darren Wilson in the Brown trial, testified before the grand jury himself, so I guess defendants do show up under extraordinary circumstances. In any case, no one was mistaken for a ham sandwich here, folks.
“It's also possible for a lawyer to be just plain stupid, isn't it?”
~Juror 8 (Henry Fonda)
Back in the real world, the failure to indict the police responsible for the deaths of Brown and Garner has spawned an understandable backlash of protest. But while the subject of protest is clear, the objective is emphatically unclear. Much like the Occupy protests following the 2008 financial crisis, people accepted that there was plenty to protest about, but the fledgling movement lost much credibility due to the illegibility of any actual demands of the protesters. Now, these latest protests are part of the mighty stream of the civil rights movement, so credibility is not what's at stake here. Rather, I fear that the opportunity for real, targeted reform will slip us by, because as it is presently constituted, the system will continue to not indict police. It simply has no other choice.
People can shout about structural racism all they want, and they can go down the rabbit holes of stop-and-frisk, police body cams, reparations, or whether #crimingwhilewhite is an unworthy hashtag (for fuck's sake). Most of these are worthy causes but, since they do not address the procedural site that is clearly at the heart of the matter, attempts to address police violence through the court system will run relentlessly into the same bottleneck as before. Rather, the system of incentives needs to be broken at exactly this critical juncture. To this effect, I propose that any killing carried out by police be immediately referred to a special prosecutor – one who is outside of the Backscratchistan fiefdom that we currently have for handling run-of-the-mill cases. I cannot imagine I am the first to do so.
This was further refined in a recent discussion with fellow 3QD author Jeff Strabone, who suggested, quite correctly, that the referral should be made automatic for the killing of any unarmed civilian. Since this type of change would have to be enacted by the relevant state legislature, including the fact that the victim was unarmed creates the additional advantage of being politically much more difficult to resist. Without this kind of reform #BlackLivesMatter and #ICantBreathe will soon enough join #Kony2012 in the #DustbinOfHistory.
But perhaps the solution is even simpler. As Jami Floyd noted to WNYC's Brian Lehrer the day after the indictment against Officer Pantaleo was thrown out, the United States is the only country to still use grand juries to decide anything. When one considers that at least two other countries still use the Imperial system of measurements (the United States being in the august company of Liberia and Myanmar), it is amazing to consider that, globally speaking, the pound and the foot enjoy more popularity than grand juries. But we've always been proud of our exceptionalism, haven't we?