Now wait, now wait.Give credit where it’s due. A lot of the glory goes to you.
— Professor Henry Higgins to Colonel Pickering, while Eliza Doolittle, who deserves that “lot of the glory,” stands by silently. And ignored.
In all the reportage about The Indictments, etc., there’s been ample praise for Jack Smith, Alvin Bragg and the other prosecutors around the country who’ve been working on all the aspects of this monumental case. And they are fine, no question.
But I’m slightly irked by the oft-repeated halloo, along the lines of “He/she brought an indictment against Trump!!” While prosecutors present evidence and witnesses to a grand jury, it is the grand jury who votes to indict.
So let’s give some credit where it’s due: let us come in praise of juries, grand and petit.
I’m now struck by how odd it is to compliment bunches of people I don’t know, or even know of. Indeed, they are unknown to almost all of us, and probably always will be, but at the same time, they are us. They are real people, not merely process in our system of laws, not merely dry labels in legal textbooks.
Although I’ve served on trial juries, I’ve never served on a grand one. But a close friend of mine had, and since I have only an outsider’s notion about the way GJs work, I called her, asked questions and took notes. (For this purpose, I’ll call her Lily.)
The facts and processes below are from Lily; the integrated opinions are mine.
Stupid misconception. “A prosecutor can indict a ham sandwich.” Dumb cliché delivered by people who want to sound smarty-pants. Dumb and false.
Worse than dumb and false, it denigrates grand juries who are the ones who actually decide whether an indictment should be brought or not. (You could say it also denigrates the prosecutor, who is unlikely to bring a ham sandwich into the grand jury room — unless it’s for lunch.)
A prosecutor brings a case before a grand jury because she wants to learn how strong the case is. She is asking for approval, confirmation from us, a/k/a We The People. She doesn’t need a grand jury for indictment but if she asks for one, it’s because she wants ordinary citizens to give her a meh, or a go-ahead.
And jurors, grand or trial, are not malleable. It’s the structural genius of the jury system. In a grand jury, maybe a couple of people can walk away from what looks like a clear decision but a grand jury needs only a simple majority to indict, or not indict. There’s no point in trying to mess around with them. A prosecutor may try to get pushy but with a 23-person group, where is he supposed to push?
I can’t say this often enough: the jury has the power to indict or not. And I can’t say this often enough: the jury is us. You, me, our next-door neighbors, our friends.
Jurors are serious people. One of the things that most impressed Lily is how seriously her fellow jurors took their jobs, how intent everyone was on doing the right thing. (This is what I found when I was on trial juries; everyone took the role of juror with a heightened sense of responsibility.) It may be that not everyone who first enters the jury room is a focused, serious person, but the jury experience quickly imparts focus and seriousness to every juror.
The schedule. Lily’s grand jury met two days a week, for eighteen months. In that period, the jurors considered hundreds of cases. (I would think the grand juries involved in the Trump cases were/are called for that one specific inquiry but I don’t know this.)
The physical ambience. The jury met in a room in the courthouse that looked like a school room, or lecture room. There was a desk in the front and the seats were staggered. The room had no windows.
Taking notes. The jurors were each given a notebook for note-taking. They were not permitted to remove the notebooks from the room and had to hand them in at the end of each session.
How they were presented with a case. A prosecutor gave them the elements, sometimes illustrating via video or white boards, or simply telling them what had happened. The prosecutor would inform the jurors what the defendant was accused of. Occasionally photos and written material would be passed around to the jurors. If there were witnesses, each would be questioned by the prosecutor, and then by any juror who had a question.
Asking questions. After they heard the elements of the case, the jurors could ask the prosecutor questions. Sometimes the prosecutor would tell a juror his question was outside the scope of the inquiry.
Different points of view. Given that the grand jurors — in her district, there were 23 — came from the sort of diverse circumstances and cultures we all understand as American, Lily became acutely aware of how differently each culture looked at our system of justice. Some people were suspicious. There was a noticeably black/white division. Blacks jurors didn’t trust the cops or the system and the white jurors more or less automatically did — at least at first. (In New York City, where I’ve served on juries, all of us were automatically suspicious of police testimony — described, at least in the world of criminal defense lawyers, as “testilying.”)
What’s great about a grand jury. Lily felt the best characteristic of the grand jury was that when there was disagreement among the jurors, it never became an argument, because it didn’t have to. A grand jury is not required to make unanimous decisions. The jurors listened to each other and accepted each other’s views.
Decision time. The prosecutor would read an exact charge and ask the jurors “Can I get a clean bill of indictment?” Or “Can we indict on this charge?” The vote was, as she recalled it, by raising hands. Of the 23 jurors, at least 12 were needed to approve of a charge.
Still, the punchiest thing I learned about grand juries emerged at the end of my interview with Lily, when she suddenly remembered this:
Lily’s grand jury had been involved with some cases that were notorious enough to have been reported upon in the local newspapers — at least one of which was and is world class. When the jurors saw newspaper articles about a case they had before them, they were stunned: the reportage had nothing to do with what they were working on.
Nothing to do with what they were working on.
It isn’t that the journalists were bad or prone to dip into fake news; it’s that, given the secrecy of grand juries and the improbability of leaks, they couldn’t get accurate facts. They could only surmise.
The facts are in the indictment, for which we owe grand jurors thanks — for being there not for the rest of us, but as the rest of us.