
A Grand Juror Speaks: The inside story of how prosecutors always get their way - pron
http://harpers.org/archive/2015/03/a-grand-juror-speaks/
======
dantheman
This wouldn't be a problem if people actually went to trial. This whole
concept of plea bargaining is immoral - we can't say you have a right to trial
by jury, but if you exercise that right you run the risk of having the charges
be 10x the plea bargain. If the plea bargain is enough to provide justice,
then that's what the defendant should face in court.

~~~
ghaff
Then why would anyone agree to a plea bargain?

(Which isn't to say that stacking up a lot of questionable charges to force a
plea bargain is reasonable or fair. However, I don't see anything wrong with
the basic idea of plea bargains.)

~~~
CHY872
There are plenty of well documented cases of people who are innocent pleading
guilty to lesser charges because regardless of innocence, there's still a good
chance that they'll lose in front of a jury.

Say the prosecutor offers you 6 months for a plea, or 3 years in jail if it
goes to court. Unless you can place odds of winning at 85%+, even the rational
would take the plea.

Chances are, most of the people who face such deals are poor, probably not
particularly clever and will have terrible lawyers. So the plea looks
increasingly the best choice, even if they didn't do the crime, or even if
only a few of the charges will be able to stick.

~~~
digi_owl
Never mind that virtually nobody is "rational" in the game theory sense. As
such, people will go for the sure thing even if they have high odds of
winning. We are wired to be risk adverse to the extreme.

~~~
UnoriginalGuy
Define "winning." Is this what you mean:

\- Get arrested. Lose your job.

\- Spend 3-12 months in jail awaiting trial.

\- Spend $50,000-100,000 on lawyers and legal fees.

\- Spend another 1-3 months in jail during the trial stages.

\- Get found "innocent."

\- Get release only to find that the local TV shows splashed your mugshot all
over the TV related to whatever crime you're accused, reputation ruined, you
have to move.

So now you're destitute, homeless, jobless, and lost all told two years of
your life. But at least you "won" the trial. Big win that...

~~~
rprospero
> Get found "innocent"

When I was younger, a local judge came to visit my Boy Scout troop and discuss
the justice system. I don't remember what question I asked him, partially
because he never answered it. The answer never came because I touched on an
incredibly sensitive pet peeve of his - defendants are never found "innocent".
They are merely found "not guilty".

He went on to explain that the court can't find you innocent, because no one
who goes to court is innocent. You "obviously" had made some mistakes with
your life if you were on trial in his court room. His duty was to decide if
you deserved to go to prison for those mistakes.

It was a long time ago, so I only remember bits and pieces of the other parts
of his lecture. The part where he talked about how things went so much more
smoothly and quickly when he could talk to the defendant directly without his
lawyer still sticks in my mind.

~~~
digi_owl
And here i thought the basic concept was "innocent until proven guilty"...

~~~
sokoloff
Those two concepts follow each other.

The presumption of innocence combined with the "beyond a reasonable doubt"
standard of proof means that, in a wide variety of criminal cases, the
defendant is quite possibly or even very likely guilty but there is still
reasonable doubt.

That means that the finding is necessarily something we call "not guilty," as
that's the literal finding of the court. We do not find you guilty and this
matter is closed. It is not a _finding_ of innocence and so is not reported as
such.

Simplistically, compare the difference in the NFL replay system of "the ruling
on the field is _confirmed_ " vs "the ruling on the field _stands_ ". The
latter is the gray area and both are reported as "not guilty" in the criminal
system (in the US).

------
mherdeg
Just to add some context … this story is interesting in the context of the
Ferguson, MO grand jury decision not to indict Darren Wilson.

Recall that Wilson shot and killed Michael Brown, an 18-year old black man, in
August 2014. The circumstances of the shooting were controversial.

In that case, the prosecutor, Bob McCulloch was asked by activists to recuse
himself from the case because of apparent biases in his personal history (his
father was a St. Louis police officer who was shot and killed in the line of
duty).

After the grand jury declined to indict Wilson, activists claimed that this
probably happened because McCulloch convinced the grand jury not to indict.

This story is interesting because it provides evidence that in the "normal"
course of operations of a grand jury, grand juries nearly always indict as
long as there is something which looks like plausible evidence. So when the
person in this story says "We had, as ever, no choice. We voted to indict" —
that is interesting to compare against the Ferguson grand jury's decision
_not_ to indict, a very, very rare occurrence which should raise questions
about how it happened.

Wikipedia glosses this as "Legal analysts raised concerns over McCulloch's
unorthodox approach, asserting that this process could have influenced the
grand jury to decide not to indict,[63][79] and highlighted significant
differences between a typical grand jury proceeding in Missouri and Wilson's
case.[33]".

~~~
developer1
The way you describe it though, it sounds pretty... disgusting... that grand
juries nearly always indict. This would indicate that there is nearly no point
in holding a trial if the norm is to always convict.

~~~
dedward
A grand jury indicting is rather different than a trial jury convicting.

------
PaulAJ
America has systematically stripped judges of their authority to make
judgements. This was done partly to ramp up sentencing due to fear of crime,
and partly to make justice more even-handed. The latter is not an unreasonable
goal; skin colour is well known for biasing all sorts of people, and other
things can do too:
[http://www.economist.com/node/18557594](http://www.economist.com/node/18557594)

Unfortunately this power of arbitrary judgement has not gone away. Instead it
has been handed to prosecutors. In the past, if the judge thought a prosecutor
was unfairly throwing the book at a felon then he or she could hand down a
sentence in line with the facts rather than the charge sheet. Now this is not
possible. Its up to the prosecutors to decide how long the charge sheet is,
and its the charge sheet that determines the sentence.

~~~
cmdrfred
Judges have also been known to threaten anyone with jail who suggests jury
nullification is a possibility. It seems pretty clear that it was the sort of
thing the founding fathers intended when the created the system, but never the
less if it takes away from the judges and prosecutors power they will fight it
tooth and nail.

[http://en.wikipedia.org/wiki/Jury_nullification_in_the_Unite...](http://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States)

~~~
Karunamon
I'm sorry, but that's a rather inaccurate view as to the justification for
jury nullification. It is not a thing that's directly provided for in the law,
it's a confluence of two legal principles: juries can't be held liable for
their decisions, and the prohibition against double jeopardy.

There's also the problem that that when people are told about nullification,
they consider evidence less than they otherwise would.

In other words, i'd argue that there are some very good reasons for this
setup, as inconsistent and illogical as it sounds.

Great video that explains this:
[https://www.youtube.com/watch?v=uqH_Y1TupoQ](https://www.youtube.com/watch?v=uqH_Y1TupoQ)

------
csandreasen
I think this article glosses over the purpose of the grand jury - the grand
jury doesn't vote to _convict_ , they vote on whether or not to _indict_. The
entire purpose is to prevent people from being harassed by prosecutors. They
review all of the evidence that the prosecutor has gathered and determine if
it's sufficient to send people to trial. If the prosecutor has compelling
evidence, then they go to trial and both sides present their case. If not, the
defendant never goes to trial to begin with.

~~~
falcolas
The problem with this assertion is that it implies that cases go to trial.
Most never do: the charges are used with the threat of extended imprisonment
to secure plea bargains.

Since most never see trial, the Grand Jury is the closest to a "trial by
peers" that most accused will ever face.

~~~
notahacker
The problem is with the post-indictment actions of prosecutors rather than the
way grand juries are set up though.

It's certainly within the realms of possibility to introduce legislation which
limits the scope of plea bargains though (most likely by preventing
prosecutors from pursuing charges and sentencing options they have indicated a
willingness to drop in return for a guilty plea for a significantly lesser
offence)

~~~
whichfawkes
I may be misunderstanding, but that sounds a little off. Suppose that Some Guy
has been arrested for having some marijuana, and at the time of his arrest, he
also had a plastic ziplock bag in his possession.

This case gets taken to the Grand Jury and they indict the guy for possession
of marijuana, and dealing marijuana. At this point, the prosecutor could
potentially offer some different plea deals:

-1) "Plead guilty to possession, and we drop the dealing/distribution" -2) "Plead guilty to both, and we change the sentence from 5 years to 1 year."

Are you suggesting that in case 1, once the prosecutor has offered that deal,
that the prosecutor can no longer pursue the dealing/distribution charge, and
that in case 2 the prosecutor can no longer pursue a sentence longer than 1
year? At that point, what purpose does a plea deal serve? As the indicted,
you'd be a fool to accept the plea deal since you're guaranteeing the (now)
worst outcome of the trial for yourself. As a prosecutor who knows that, you
probably won't bother to offer any plea deals. I don't know if this is
necessarily a problem...but then why not just get rid of the concept of a
plea-deal?

The conceptually more pleasing solution would be to see the grand jury _not_
indict for the distribution charge in the first place, because of the lack of
real evidence (a plastic baggie does not a dealer make). In that situation,
the prosecutor cannot attempt to trump up charges to motivate a plea-deal. Of
course, I don't know how you actually fix that...

~~~
notahacker
I'm not suggesting that prosecutors should have no leeway at all to press for
higher charges.

I am suggesting that the plea bargain becomes more along the lines of the
accused's legal representation advising them "the prosecutor has made a formal
offer to drop the dealing charge if you plead guilty to possession. They can
still pursue the dealing charge if you plead not guilty, but because they've
made that offer you'd be looking at an extra year if also convicted of dealing
rather than an extra seven"

I think we'd see fewer plea bargain offers, but more importantly people would
only accept them if they thought it more than likely they would be convicted
anyway, which in theory is the _point_ of permitting plea bargains.

------
jgalt212
This is just one data point, but I served on a NY grand jury a few years back.
30 cases, 27/28 found for indictment. of the 2 or 3 we dismissed, the accused
testified on their own behalf during the grand jury process. In only about 5
of the 30 cases, the accused testified on their own behalf.

I don't know why most accused don't testify during the grand jury process, but
without their testimony the process is obviously a very one-sided affair. As a
result, there are many indictments and many plea bargains.

~~~
XorNot
I'm guessing a lot of the accused do not test well in public speaking
engagements - which is not an unreasonable outcome to expect. I can't even
imagine how I'd react to finding myself the accused in a major court case.

~~~
jgalt212
While that may be true, so long as the accused didn't directly come out and
say, "I did it!", our grand jury universally felt that accused testimonies
helped them rather than hurt. And even though we only saw few accused speak on
their own behalf, none of them were polished public speakers or witnesses.

------
ghaff
In addition to grand juries being, as the article says, mostly a "minor
procedural hassle" to prosecutors they're also a significant imposition on
citizens serving on them. I suspect that most people who really don't want to
serve can get out of serving. (When I got called for duty, at least most of
the slots were filled by people who either essentially volunteered or at least
said they weren't opposed to serving.)

However, depending on the individual state, juries are impaneled for some
number of months and may meet for most days. Compensation is minimal; in
Massachusetts, it's $50 per day. And federal grand juries are impaneled for 18
months I believe.

~~~
revelation
This is of course a major problem in and of itself. The (grand) jury system
selects for people that are either too stupid or indifferent to getting out of
duty.

~~~
ghaff
I'm not sure "too stupid or indifferent" is quite fair. You have retirees who
see it as a change of pace or just people who feel strongly about their civic
duty (and whose companies will presumably continue to pay their salaries).
That said, it's absolutely fair to say that it's far from a random slice of
the population to an even greater degree that juries in general. I suspect
that most (but not all) US readers on this site would try fairly hard to get
out of a three month, five day a week grand jury commitment.

~~~
Spooky23
Grand Jury service is usually one day a week for a few months. In my case, it
was 8 weeks, and we were frequently dismissed before the end of the day.

If your employer doesn't suck and pays you your normal salary, it's not a
significant hardship. I've found my jury service in all instances a
fascinating and educational experience the was worthwhile in the end.

~~~
ghaff
It really depends on the state and county. In Worcester County in
Massachusetts, they said it would be three months for typically five days a
week. (My understanding is that the term of service is standard across the
state but the number of days a week is a function of the typical case load in
the specific county so the more urban counties require more days than the more
rural ones.) I know someone who was on a grand jury in a New Hampshire county
and it was (I believe) for a shorter period and only one day per week. The
degree of inconvenience obviously also depends on your job. For example, if
you normally travel a lot, it's going to be tougher.

------
CHY872
Very interesting. It's intriguing how the ideals seem to remain in the
procedure, whilst the enactment of the 'justice' differs wildly from that
envisaged.

To me, 90% felony plea-bargains would imply that the grand juries are doing an
awful job; it suggests that they're bringing many charges that they don't
think they can win.

This is presumably one of those tragedy-of-the-commons type situations; if
everyone decided to only charge fairly, there'd be less incentives for plea
bargains, immediately all of the courts would be clogged, there'd be
congressional attention, probably more funding, perhaps procedural shortcuts
and it would eventually end up more fair for everyone.

In the meantime, any one prosecutor who decides to do this simply ends up
massively dropping their conviction rate and presumably losing their job. So
they won't do it (and I don't blame them!).

My guess is that what this needs is a large campaign from activists to
pressure congress into making the changes on their own. That'll be really
difficult.

~~~
Zigurd
Or remove immunity from liability from prosecutors. Bond them, instead. That
would price the most over-aggressive prosecutors out of the business.

~~~
briandear
Exactly this! The problem is entirely because of convict at all costs DAs.

------
jongraehl
Interesting story but nothing seems exactly _wrong_ with any of it. Is it the
case that prosecutors mostly make reasonable indictments _because_ of the
potential embarrassment of having a grand jury naysay them, or should we just
scrap the grand juries because prosecutors will anyway only bring supported
charges? As a small optimization I'd suggest using a single judge or a smaller
number (5?) of jurors for the same purpose.

------
fnordfnordfnord
More of that sort of thing: [http://www.texasmonthly.com/daily-post/grand-
jury-system-tex...](http://www.texasmonthly.com/daily-post/grand-jury-system-
texas-broken)

------
markbnj
Just as a data point: my best friend served on a grand jury in New Jersey, and
this account squares almost exactly with his experience as related to me in
many conversations.

------
EGreg
That last paragraph didn't contain much information. Wish it did, it seemed
toyally illogical.

------
briandear
I have a question. If the accused persons in the examples presented had not:
1. Fired a gun in the air; 2. Attacked some lady to steal her stuff; or 3.
Taken things from a store that obviously weren't theirs, would they have been
in front of a grand jury in the first place?

If the 10 jacket thief had stolen zero jackets then there'd be no way that
he'd be fighting a grand vs petit larceny charge. The warning shot guy, he
also wouldn't have been facing an attempted murder charge. What's the excuse
for the guys that robbed the lady on the sidewalk? Profiled or not, it doesn't
seem that their actions were in dispute, even by the skeptic.

I fail to understand how being "of color" forces someone to fire a gun
threateningly, steal 10 jackets or rob a lady on the sidewalk. The trials and
punishments could possibly be racially biased, but the crimes aren't. What
percentage of people in prison are unequivocally innocent and have never
broken a law? Even the Gary Graham case in Texas a few years ago, which
claimed he was innocent of the specific murder with which he'd been charged
still went on an undisputed rape and robbery spree (where he allegedly
committed a murder.) Almost without question he would never had been on death
row had he not made the decision to seriously harm others. His decisions led
to his consequences. The lesson should be: Don't hurt people, don't steal
stuff and you won't be facing the potential immorality of a Assistant DA
looking to boost charges.

However, I am aware that there are cases where the prosecution attempts to
make a case where there isn't one. That should be a crime in itsef.

I've been a victim of crime several times (I drove a taxi in Houston during
college.) One (of the two) times I was robbed at gunpoint the perpetrator had
his front teeth completely gold; however when I looked at the photo lineup,
All of the teeth had been blacked out. I was informed that gold teeth use in
identifying suspects had a racial unfairness aspect and to prevent the undue
'racial' influence from a gold tooth identification, they blacked them out. I
explained, "but it was a black guy with gold teeth!" So we could have quickly
eliminated all of the Asian guys with no teeth. Alas no. The fact is this, the
guy and his friends that ambushed me in Houston that night on Coke Street
likely set aside their criminal ways after that night, found Jesus and started
volunteering in the community right? Or, more likely they found themselves in
front of a grand jury debating whether they stole 10 or 11 jackets.

After having a .38 pointed at my head while I was face down on the sidewalk
over $130, I have very little patience with people who want to knit-pick over
if the cops smelled alcohol on an assailant's breath after they robbed some
lady on the street.

You don't want to go in front of a grand jury? The way to do that with the
highest degree of probability is to not commit crimes. The plea bargain debate
is moot if there is no crime in the first place.

~~~
whichfawkes
Yeah, if any one person decides that they don't want to end up in front of a
grand jury, then obviously they shouldn't commit a crime. However, treating
the accused fairly is an important aspect of our society.

Suppose 10-jacket guy was walking out of the store with his big back stuffed
with jackets, and he accidentally bumps into someone and knocks them down.
Without a grand jury there to protect the accused, the prosecutor is at
liberty to call that "assault" and tack on some extra charges to help him push
for the plea-deal and make his life easier.

