I originally intended to have at least 2 more posts on grand juries, but decided against.  They were both going to be “its unbelievable how easy it is to get an indictment” pieces–so unlikely to be very fresh.  Given that, I thought I would jump right to some suggestions for improving grand juries.  I should preface this by saying its not clear to me they should be kept.  Probable cause hearings in open court may be a better alternative from a social justice perspective.  And there may be other alternatives.  But I’m not sure we should give up on grand juries (where they are still used) and I am not sure we could scrap them if we wanted to.  Another preface, perhaps too obvious: as a non-practitioner, I am far from an expert about these things.  Perhaps an outsider perspective can help though.

I think there are 2 basic problem areas with grand juries: what the DA’s office does (or doesn’t) do and the normal human tendency (of grand jurors) to do as the authority figure says.

On the first day of my grand jury service, when the judge swore us in, he indicated we were bound to accept the law as it is and vote true bill (i.e., indict) or not based solely on whether we thought there was probable cause for the charge as stated.  He indicated, very clearly, that if we had problems with the laws, we should take it up with our legislators–and that to do otherwise (i.e., to vote on the indictment based on whether we thought the laws in question were just) would be to bring “chaos.”  To my mind, this is a reductio—the conclusion is so absurd that there is clearly an assumption in the argument that must be rejected.  Indeed, its pretty clear that the DA’s office doesn’t bring charges against people for crimes if they do not think they can win in court–and somehow this is not thought to invite chaos.  Prosecutorial discretion leaves the system in place somehow while grand jury discretion brings chaos and ruin down on us all.

While on a grand jury, I tried to persuade others on the jury that they do not work for the DA but for the citizens of the county and that just as the DA can use discretion in bringing charges we can use discretion in indicting–and that doing so may help to send a message to the DA about the sorts of cases we think they should take.  In my own view, there should be no criminal laws for victimless crimes, so I would sometimes argue against indicting people for such crimes (drug sales, possession, etc).  I challenged some jurors to consider whether they would have indicted anyone for breaking the laws against miscegenation; suggesting some of the charges we were hearing about were just as lacking in moral substance.  There was, I admit, some hostility toward me when I looked for reasons not to indict–but I think there was also some appreciation.  And I think I had some success.  Given even the little success I had, I think prepping the jury to think about (a) what a felony record does to an individual’s life, (b) why we have the laws we do, and (c) their roles as citizens and neighbors rather than as officers of the court, can help.

The way the DA’s office presents cases is harder for me to assess and I admit to no certainty about what should be done, but I have a few suggestions.

First, each charge be handled separately.  I saw numerous cases where I thought that if this was part of the process, several charges would have been dropped.  In one case, to my happy surprise, we didn’t get enough votes to indict someone for a series of charges–because of the packaging.  If one charge (drug related) had been removed, I think he would have been indicted.  In a lot of cases, some of the charges are obviously just tacked on to make it likely that the DA can get a conviction for something–also making it easier for them to engage in plea bargaining.  E.g., “theft by taking” when an arrested party runs after being handcuffed–i.e., charging them with stealing the handcuffs (on top of resisting arrest, etc.)–or any charge of “X while committing a felony” where X is otherwise legal.  I suspect many of these would get rejected.  (In a few cases, unless I am misremembering, the only real crimes charged were misdemeanors–and more people are convinced that if the underlying charge isn’t a felony, we should be very skeptical.)  For an excellent recent discussion of this, see David Shoemaker’s piece at PEAsoup.

Second, the ADA handling the case should not know what judge would hear the case.  In response to the frequent question from people I served with, “why did you use this charge instead of that charge?,”  ADAs indicated that they did so because they could predict that the judge who would hear the case would be sympathetic to this one and not that one. Part of my thought here is that the more judges that are sympathetic to a particular charge, the more likely that charge is a genuine concern.  So, if 90% of judges toss cases of mere possession of less then an ounce of marijuana, those cases would all be tossed. The ADA would not know that the judge that would hear the case would be in the 10% and wouldn’t risk the loss.

Third—and now getting more far out—perhaps DAs in 1 county should present cases to judges in other counties, and even states.  The idea here is that the less camaraderie between judges and prosecuting attorneys, the better.  If that idea has merit, it might be worth randomizing which courts hear which cases.  Perhaps these are changed monthly.

Fourth, perhaps do the same for the ADAs—that is randomize the sorts of cases each ADA handles.  Instead of having a set of ADAs that handle all drug charges, another that handles all battery charges, etc, change these sets in a random manner, perhaps monthly.  The idea here is twofold: making more people seriously think about the sorts of charges filed against citizens is good as one or more of them might start challenging the merits of those charges and, in any case, the prosecuting attorneys are somewhat less likely to become desensitized to the claims of the accused.

Fifth, the size of the grand jury is an issue.  In my county, there are 26 members of the grand jury and a quorum is 16 to 23.  If there are more than 23, people have to leave the room.  Less then 16 and work stops.  This leaves room for people to be absent or to take breaks while allowing the work to continue.  That’s all reasonable, but consider that 12 yes votes are needed for indictment.  Obviously, getting 12 out of 16 can be harder then getting 12 out of 23.  Why not make the quorum narrower (say 16 to 20 or even 16 to 18)?  This would make getting indictments marginally more difficult.

Sixth, in my county, the DA’s can bring a case back for a second shot at indictment if they don’t get one their first try.  So, they fail to convince 12 people that the case should be indicted and, instead of thinking “oh, we were wrong,” they try again.  Fortunately, its only a second shot.  Still, it seems problematic–in a way that can be easily addressed by requiring that a second shot is only permissible with cause (some list of which would need to be drawn up).  I should note that when you couple this ability to bring a case a second time with the fact that the DA’s office can decide not to prosecute any case that is indicted, it seems clear that the system is designed to help the DA’s office improve its record (in terms of getting guilty verdicts for the cases it brings to court).  Why this hasn’t gotten more press then it has is beyond me.

That’s it.  I’m happy to see other suggestions or to hear why any of the above can’t work.

This piece was originally published at Bleeding Heart Libertarians. This is part two in the series, you can read part one here.