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A Grand Juror Speaks: The inside story of how prosecutors always get their way (harpers.org)
184 points by pron on Apr 5, 2015 | hide | past | web | favorite | 101 comments

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.

This is exactly why in many other Western countries pleas are essentially non-existent in criminal prosecutions. The whole plea system creates an environment where miscarriages of justice can easily occur (e.g. innocent pleading guilty due to the cost of a trial/time they would spend in jail awaiting trial, or other prisoners false testifying in exchange for a lighter sentence in their own crime).

But Wikipedia covers why the plea system is horrifying is pretty great detail:


The American justice system from a foreigner's perspective just seems like a revolving door punishment system with almost no reform, and one where money plays a MASSIVE part. If you're rich you won't spend any time in jail, and you likely won't be convicted even if guilty. If you're poor you can be innocent and still have to plead guilty because you lack the $100K you'd need to mount a real defence (and you'd still lose).

I genuinely believe there are some good individuals in the US justice system, but most of the people at the top and the politicised prosecutors, politicians, and judges just ruin it. You could easily improve American justice tomorrow by scraping most pleas, re-introducing the right to a speedy trial (e.g. 12 months in jail to be found innocent is immoral/unjust), and increasing public defender funding significantly (at least 20x).

A few other points:

- Common law vs Civil law... reliance more on legal precedent than on codified laws makes the legal field unnecessarily complex. If common-law defenses or other considerations are not included in the plain text of codified laws, the codified laws need to be fixed.

- Adversarial system vs inquisitional system. These need not be disjoint. Some sort of hybrid where the judge (and jury) can ask pointed questions of witnesses, or ask for elaboration on some point a lawyer is making, seems prudent. That's not to say the adversarial system is entirely bad. The notion, at least in civil cases, and for the defense in criminal cases, that the parties need their own dedicated advocate, is certainly valuable.

- Too many laws. The externalities of creating more and more laws seem lost on legislators (figuratively speaking; not truly lost, but ignored, since it ensures job security for lawyers).

- Reform of the incentives for prosecutors. The objective should not be to win cases, but to serve the public interest. Criminal prosecutions should not really have dedicated advocates intent on trying to convict the defendant, but that's what prosecutors in the United States usually are. Rating prosecutors by conviction rates is absurd unless you've already decided that every defendant is guilty.

> Rating prosecutors by conviction rates is absurd unless you've already decided that every defendant is guilty.

Untrue. Its also reasonable if you assume that the legal system outside of the prosecutor works perfectly, and therefore, independent of the prosecutors actions, no innocent defendant will be convicted. With that assumption, a high conviction rate means that the prosecutor is serving the public interest by not charging the innocent.

Of course, reality deviates from this in a number of ways, most critically in the high rate of plea bargains and the lack of evidence testing in the case of plea bargains.

In other words...you've already decided that every defendant is guilty.

"A defendant is a person or entity accused of a crime in criminal prosecution or a person or entity against whom some type of civil relief is being sought in a civil case." [0]

I wouldn't say what he said is untrue, you're just refuting his statement based on the definition of a defendant (whether a defendant is someone charged with a crime vs being prosecuted against). Sounds like you have different definitions that lead to slightly different relations of the same situation.

[0] https://en.wikipedia.org/wiki/Defendant

I think there's an important distinction the parent was making that isn't just down to definitions.

A prosecutor has two roles. One is to select people to make into defendants, and the other is to try and get those defendants convicted. If we imagine that a prosecutor cannot get an innocent person convicted, then judging them by conviction rate is first judging them by their ability to choose the guilty to prosecute. You've not decided that every defendant is guilty - you've decided that every defendant should be guilty.

Imagine a sieve, designed to collect pebbles larger than 30mm. If you've already decided that every pebble collected is larger than 30mm, you have no need to examine the performance of the sieve. If you're wondering whether the sieve is catching smaller things, then you look at the collected pebbles, and it is quite reasonable to count smaller pebbles against the performance of the sieve.

Of course, our assumption there certainly doesn't hold perfectly, and may very well hold poorly enough that we significantly reward "ability to get the innocent convicted". But dragonwriter basically said as much.

> In other words...you've already decided that every defendant is guilty.

No, pretty much the opposite -- instead, you are assuming that not all defendants are guilty, but that all non-guilty defendants (and only non-guilty defendants) will be exonerated, such that the the rate of non-conviction represents the rate at which the prosecutor attempts to prosecute innocent victims.

> I wouldn't say what he said is untrue, you're just refuting his statement based on the definition of a defendant (whether a defendant is someone charged with a crime vs being prosecuted against).

Those aren't different definitions, they are alternative phrasing of the same definitions. Filing charges is initiating prosecution.

If a prosecutor thinks they will lose a case and the defendant rejects all plea deals, the prosecutor will sometimes dismiss the case citing lack of evidence. Preventing an accused person the ability to be found not guilty.

Offering a plea, then dismissing the case when it's rejected, strikes me as admission of bad faith. Has anyone tracked those stats?

Sadly, we don't need good ideas for how the system should function – lots of people have lots of those – we need good strategies for affecting change in the current system toward those ideas.

Just to illustrate using your ideas (which I'm absolutely all for), all three of them cost public money. We would have more trials requiring more time in front of judges, but they would need to be speedier, so we would simply need to pay more judges salaries. A similar calculation suggests we would need to pay more public defenders, and if I'm interpreting your last point correctly, we would also want to pay them 20% more than we do currently. So we need a strategy for selling the tax increases at least at the state level – because the districts most affected by these cost increases are probably the least wealthy – and perhaps the federal level. Not many people will care enough that we aren't treating criminals (which is what people who have been arrested are, to most people) well enough to pay extra taxes.

So I guess, what's the strategy to push us onto a path outside this spiral?

Paying for more judges, prosecutors, and defenders might be one solution. But consider that a huge fraction of our criminal justice system is occupied by drug-related offenses. Another large fraction is occupied by violent crimes related to drug trafficking. It would be an interesting experiment to unload that from the courts and then see how speedily the remaining cases could be tried.

Fewer prosecutions.

Only pursue cases that are slam dunk prioritized by cases that have highest social benefits.

More community service based punishment. None resulting in rap sheet.

Drastically reduce jury system.

Pay Clawback and impose penalty on judge and prosecutors for wrongful convictions. Hit their collective pay pool.

Or we could just stop prosecuting so many people. The US has far more people incarcerated than any other country. Clearly we could function perfectly well without having so many trials that we need to have plea bargaining.

> I genuinely believe there are some good individuals in the US justice system, but most of the people at the top and the politicised prosecutors, politicians, and judges just ruin it.

I disagree with this conclusion: It's too easy to blame someone else, a way of maintaining our own sense of innocence. Things happen in a democracy when voters insist on it. I'm willing to bet that nobody reading this will do anything about this problem. The great majority will not even vote for their local politicians and can't even name them besides governor and mayor (try it: name your state legislators and judges). EDIT: How many reading this would serve if called for jury or grand jury duty?

Finally, the political elite behave the same all over the country. That's either a massive coincidence of bad apples or it's a systematic problem. Most people reading this would (and some probably do) behave the same in those situations.

"We have met the enemy and he is us." - Pogo (Walt Kelly)

I've always found this argument from voter apathy to be unpersuasive and arrogant.

The voting system in the United States is rather uniquely damaged with its first-past-the-post (majoritarian) elections, over a century's worth of gerrymandering that goes on strong as ever, stringent ballot access laws, public debate restrictions (which I take became stronger after Ross Perot) and so on.

It has all been meticulously crafted so that the odds are against any form of profound change, but rather to enforce the party dichotomy and have representatives maintain a comfortable status quo. The aforementioned gerrymandering strongly encourages vehement and almost parade-like, but ultimately empty and financially wasteful political campaigns, along with focusing one's efforts on leaving an impression only in certain key states and districts that are really decisive to one's performance.

Yet even people who are well versed in statistics and probability often seem to grant an exception for the insanity of voting in the United States, out of a perverse democratic ideal that ultimately isn't really there. Without some truly disruptive changes to how elections are structured (hardly a trivial matter, what with the rather fundamental chilling effect they'd have on how people have been doing things for so long), I personally find voting to be not worth one's time.

To be quite honest, with attitudes like that, I'm glad you stay home on voting day.

I'm no rah-rah booster of American politics by any means--I think they're corrupted almost beyond recognition, especially at the federal level--but I still don't see any better way to enact a government by and for the people than to cast a vote for how we feel every so often.

And from where I sit, it's working, in fits and starts, to make a better world:

* In my state, and the neighboring state, cannabis is now legal, and you can go buy yourself some pot at a retail store with nothing but cash and an ID to verify age

* Across the country, freelancers like me can now buy health insurance, where before it was so ridiculously expensive, it felt like throwing away thousands (or tens of thousands) of dollars every year

* At the local level, a nearby jurisdiction is working to ban criminal background checks on job applications, to reduce the barriers for ex-cons to re-enter the workforce

* Minimum wage laws in municipalities along the west coast are helping lift up the always-hard-working, always-underpaid lowest class of workers

This is all stuff that comes either from direct citizen participation, or for voting for someone who had that as a part of their policy platform.

Can I vote to end American meddling in the middle east? No, and that's frustrating. Can I vote to get some national recognition on the science of climate change? No, though I can vote for people who acknowledge it (and I do).

But can voting change the world you live in? Oh yes.

I'm not opposed to voting, but to plurality rule.

It seems like you totally misunderstand my point because to you "voting" is synonymous with majoritarian elections.

I didn't mean to misunderstand your point, but I think it is not that clearly made in the original post, and now that you've said it clearly, I think it's a little irrelevant to the bigger question of governance and social change.

You're raising legitimate complaints about the brokenness of our voting system, and I agree. I'd like to see other voting systems put into place at local/state levels, with an eye toward implementing them nationally; something like range voting, or one of the other "pick your favorites" voting schemes.

Where I get the biggest sense of frustration in your post, it's the sense that we can't do much with our votes, e.g. when you said "the odds are against any form of profound change" and "I personally find voting to be not worth one's time".

Well, yeah, a vote on its own isn't enough to make the change you want to see. You do have to get involved, if people aren't already organized at getting your ideas out there, to get it to the level of being voted on.

My pot legalization example, I voted on that, but I know people who were involved in the GOTV efforts, the initiative process, the whole nine yards. But the whole years-long campaign culminated in a vote, the final test of "does the public buy our argument?"

Tell them about how it isn't even worth bothering to vote.

I agree that our voting system is very imperfect, but you can't argue with the results: The most prosperous, safest, healthiest, most free society in the history of humanity.

> the odds are against any form of profound change

Yet profound change happens over and over again. Segregation is now gone (and the black middle class has exploded in size) and women are now educated and work in greater numbers than men. Recently extreme conservative policies have been imposed on the nation. Or just look closely at a photo of the current President of the United States and see if you notice something surprising.

I agree there are many serious problems, but it's hardly hopeless.

EDIT: I realize my post said that the U.S. is the best at all those things. I didn't meant to be taken that literally; my fault. To be more precise, relative to most of humanity through most of history (i.e., not relative to goals and principles of freedom, prosperity, justice, etc.), the U.S. does exceptionally well. Regardless, the argument I was making doesn't rely on the U.S. being at the very top in everything.

The United States may be the most prosperous depending on how you define that, but it's not any of the other three. To call it those is to blatantly ignore other countries doing certain things better than the United States. Furthermore, I'd argue that since the prosperity is concentrated to a greater extent in the United States than in other countries, that that prosperity is mostly illusory for the majority of the population.

Not the freest (press, 46th): https://en.wikipedia.org/wiki/Press_Freedom_Index#Rankings_a...

Not the healthiest (5th): https://en.wikipedia.org/wiki/Human_Development_Index#2014_r...

Not the safest: (108th lowest intentional homicide rate, 2nd most incarcerated nation) https://en.wikipedia.org/wiki/List_of_countries_by_intention... https://en.wikipedia.org/wiki/List_of_countries_by_incarcera...

Its also not the most prosperous, except in aggregate (where mere size is a significant factor.)

The most prosperous, safest, healthiest, most free society in the history of humanity.

Now you're just being jingoistic.

Prosperity I can give you, but safety (which does not trump liberty, I'm afraid) and health are areas where the USA lags behind. What categories would you use to determine safety anyway - crime rates in general, murder rates, the level of security theater?

Freedom is a quality which evades measurement. There's plenty of countries which have greater social mobility, personal autonomy and social acceptance of historically deviant behaviors than the USA.

Segregation is now gone (and the black middle class has exploded in size)

How is this relevant to voting or mending deeply flawed mechanics of how the government is run? The civil rights movement got rid of heinous barriers, it didn't make any changes to fundamental technical workings.

women are now educated and work in greater numbers than men

The Western world sort of convened on this at around the same time period.

Or just look closely at a photo of the current President of the United States and see if you notice something surprising.

Highly skilled communicator, policies no different from the norm over the past few decades. Oh, and black. Right.

It's just one post on the Internet so I don't want to make too big a deal about it, but FWIW the name-calling really stops the discussion. It signals to me that what follows will have the same tone and thoughtfulness, and it's also just an unpleasant way to spend my time.

vezzy-fnord didn't call you any names.

> The most prosperous, safest, healthiest, most free society in the history of humanity.

Maybe 40-50 years ago (if you were white). Maybe. Absolutely not today.

>The most prosperous, safest, healthiest, most free society in the history of humanity.

The USA? That's a laughable claim.

Those claims seem dubious when compared to New Zealand, Iceland, or the Scandanavian countries.

Massachusetts is larger and fares better that those countries. Europe would be a better comparison size wise but does not fare so well against the US.

Yet another opportunity taken to bash Europe! Try harder next time:

Income inequality (Gini coefficient, CIA Gini): EU: 30.4 US: 45


Life expectancy at birth: EU: 80.02 US: 79.56


Infant mortality (per 1000 live births): EU: 4.33 US: 6.17


Homicide rate: Europe (as a whole): 3.0 US: 4.7


Freedom of the press index (lower is better): EU (weighted by population): 17.32 US: 18.22



I don't understand the obsession with being the best in class or the best in history. Why does it matter? We have to try to be good. We have to try to be better than we were yesterday but why do we feel the need to outdo everyone else?

When it comes to things like infant mortality rate, it isn't a competition to be the best. If we have an infant mortality of 7 and Sweden has it at 8, it is nothing to boast about. If it is about things like how many polio cases, saying that there is zero case in USA vs a hundred cases in Pakistan does not help anybody.

Off topic but just want to note here that I am me. I am not my country. I am not my religion. http://www.paulgraham.com/identity.html

It is not about the best in class. Any tiny nation with the public population of a few blocks can have better numbers. Europe and the US are within the margin of error in most metrics but most comparisons are made with some tiny homogenous nation. Why? Because Europeans are obsessed with America's alleged wickedness and yet they complain that it is hard for them to start their business here. Why don't they start their business in Europe if they think it is so much better?

Why do we have to insist that we are the best though? Why do we have to say we are number one?

Of course, Europe is obsessed with the US. I've got nothing to say to them. Why are we obsessed with calling ourselves the best?

Don't forget the tightly-held media pumping out propaganda to remind The People that the status quo in America is the best in the world, is perfectly democratic and is exactly in line with how it was conceived by 18th-century philosopher-gods.

There's a publication comparing plea bargaining system of US with the tortures commonly applied in medieval courts to get convictions: http://www.ibccrim.org.br/DPE2014/docs/flavio/torture.pdf

In short, the way the plea bargaining system developed was due to the jury system being too ineffective and time consuming in producing convictions. Thus the workaround which forces innocent people into accepting charges.

Even Justin Bieber took a plea deal in his DUI case when it appears his BAC was .014 and the cops lied or exaggerated the facts during the arrest. Perhaps he was still guilty of reckless driving but there's no consequences for the cop who seems to have lied. He likely could had won the case or forced the prosecutor to drop the charges.

Beyond facing a greater sentence, to fight the most minor of misdemeanor charges will cost $2,000 to $5,000 for a lawyer or just pay $250 and get it reduced to an infraction like jaywalking. It makes a mockery of the idea of justice.

I think the whole system of inadmissible evidence and plea bargains is unfair and dishonest. If a cop decides to lie or break into a house, what they find should be admissible, but they should also face the consequences of breaking and entering, armed robbery or whatever. In fact, these consequences would be more severe for public servants like cops. If the cop wants to lie to get a conviction, they should be able to do it BUT also pay for their lie. The mitigating circumstances would be considered and the cop might get off with less, but they should be under the same law as everybody else! If they want to get the guy so bad that they are willing to face prison themselves for a few years for entering without a warrant to photograph the smoking gun, they should be able to do it.

This way the truth and justice actually wins out. As opposed to murderers getting off on a technicality or cops lying with impunity and ruining innocent people's lives.

Of course, the above would still not obviate the need for entrapment defense etc.

> In fact, these consequences would be more severe for public servants like cops.

I absolutely agree with this. Police officers need to uphold a higher standard.

> If the cop wants to lie to get a conviction, they should be able to do it BUT also pay for their lie.

The problem is that while an individual police officer might be not very willing to do things like write false and questionable tickets, police administrators and local government people would love that extra income without having to raise taxes (or do other things that invite scrutiny or would make them look bad). I bet if things like these were admissible, there would be pressure to go get them and fabricate the backstory on how the evidence/information was obtained. Granted things like this already happen but I am afraid this might even make the blue code of silence stronger.

Individual police officers are people and have ethics and morals. However, they are subject to bribery, coercion, and promise of a reward for conforming like anyone else. I'm afraid the risks of allowing fruits of poisonous trees would outweigh the benefits.

Step 0 of fairness. Separate the incentive from the enforcement. Fines shouldn't benefit to the same entity who pays the police.

It would take a lot to convince a prosecutor to charge a cop trying to help that prosecutor's case.

Just spit-balling, what if we had a competitive prosecutorial system? Instead of a single DAs office, two or more with aligned, but not shared, incentives.

Follow the money. Who pays for it? How do we pay them?

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.)

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.

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.

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...

> 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.

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

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).

Your mugshot went on page one. News of your exoneration was buried on page 10.

> 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 that case the plea bargin looks like it helps society, not hurts.

There was a case recently where a guy waited 12 months in jail for a trial....the prosecutor offered him to accept a plea and 1 year of prison + they would accept the time already served in jail, so he would go home within a week.....or he could wait until the trial and potentially be sentenced to 3 years. I guess anyone who spent a year in jail would be happy to say they are guilty just to go home quicker,even if they are innocent.....it's essentially like torture. You torture someone until they say they are guilty, because doing so offers smaller punishment than going to trial.

If the plea bargain is close to the sentence and not order(s) of magnitude less.

If you take 10% reduction in exchange for not wasting everyone's time is one thing ... but taking one year when facing possible 40 is absurd.

Yeah. You know something's wrong when 98% of federal cases are pled out.

Indeed. Sickening

ummm, actually it is closer to 20x.

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]".

Based on the DOJ report, it seems that the case never should have even been brought before a grand jury. The prosecutor faced intense political pressure to bring this up before a grand jury - he shouldn't have done so, but he would have been tarred as a racist by the national media if he didn't. It's a bad situation all around.

I mostly agree with this, but to be a little devil's advocate, it does look pretty bad for the local prosecutor, seen as in bed with the current system, to handle the case. Even if the shooting itself was completely clean - as it appears to be - it would still look better if an independent prosecutor was trying the case.

But then, the DOJ reports seem to show that, while the shooting itself was probably clean, that's about the only thing in Ferguson that was. With such a level of animosity between the population and the law enforcement system, is there anything that the system could have done at that point to satisfy the population? And the system has done plenty to earn that level of animosity - at this point, it's easy to see why the population is furious, even if the Brown shooting isn't the best case to focus their anger on. But people pay a lot more attention to a shooting than to countless hassles via tickets for trivial offenses and a legal system designed to make it as difficult and expensive as possible to stay on the right side of the law. And so we have the situation today.

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

Another interesting result from this is that one of the grand jurors is suing to lift the gag order imposed on the grand jury so s/he can discuss the process in that specific case. The prosecutor has opposed the motion [1].

[0] http://time.com/3653815/ferguson-grand-jury-michael-brown-da...

[1] http://www.usatoday.com/story/news/2015/02/10/mcculloch-ferg...

Yeah it's interesting, a couple times the article seemed to want to make the larger point that prosecutors have huge power to direct a grand jury in the direction they want them to go, but the evidence in the article actually makes the slightly different point that grand juries nearly always indict. Those two different points lead to two different conclusions about the Michael Brown case.

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.

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

In normal circumstances, it makes sense that grand juries would always indict - because prosecutors would not bother to bring a case before a grand jury if they didn't think they would get an indictment. All you need to bring up charges is probable cause, which is a pretty low standard, and it should be pretty obvious to a prosecutor if they have it. So the cases are all pre-filtered just because the system is in place. Even if the grand jury system approved 100% of indictments, it doesn't mean that it isn't preventing bad indictments from getting through.

The same reasoning holds true for high rates of approval for warrants and 0% of airline luggage going through screening contaning bombs.

Trials are different because they have an extremely high standard - beyond a reasonable doubt. A prosecutor can be completely convinced in their own mind that someone is guilty of a crime and they have no choice but to bring them up on trial if they think they even have a chance of meeting the high standard, even though they may fail.

Indict and convict are different things.

Indicting means proceeding to a trial.

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

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.

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.


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

Agreed. Part of the purpose of a trial by a jury of your peers in your own state of residence is that the jury is to decide if the law is fair, or fairly applied.

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.

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.

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)

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...

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.

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.

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.

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.

Most of the time, defendant's are not invited to testify. Many times, they have no idea that a grand jury investigation is taking place.

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.

I served four days a week for three months, with the ominous threat of being "extended" one day a week for months more on end to finish a murder trial (which we ultimately were not). My employer paid my salary for the duration. If it had not, I would have been excused for "financial hardship."

One of the most frustrating aspects of the grand jury process is that the ADAs instruct you on the elements of the law after you've heard the evidence, and tend to do so poorly. By the time they've even told you that they're charging trafficking, and what that means specifically, it's often inconvenient to bring someone back to testify as to gross vs. net weight, that sort of thing. For one charge, the ADA read aloud a very long paragraph from the statue, of which only one sentence was relevant.

I also found that some jurors leaned heavily on "probable cause" as an excuse to be sloppy. The bar is lower, it's not like we're convicting the guy, and besides, do you think the cops didn't do their job?

That said, most of the cases were strong. There was little doubt that the accused performed the action. Most of the doubt was whether the action satisfied the elements of the crime. Out of hundreds of charges, we only returned a "no bill" (declined to indict) on one. However, I strongly believe that we incorrectly returned a "true bill" (voted to indict) on two charges.

The experience was educational, but not one I'd wish to repeat. Most of my co-jurors look back on it much more negatively than I do.

Edit: I should add that the ADA was very unhappy with the one "no bill" that we returned, incredulous that we could come to the conclusion that we did.

Curious about a couple of things.

>My employer paid my salary for the duration. If it had not, I would have been excused for "financial hardship."

Do you know this for a fact or are you just assuming it would be the case? You're probably right but the judge is under no obligation to excuse.

Did you make any effort to avoid being seated on the jury? Good for you if you didn't but just curious. I didn't take any extraordinary efforts to avoid being seated but I certainly didn't volunteer either.

I suppose it could depend on the judge, and things may look different on the first day of empanelment than the fifth, but they made it pretty clear that they didn't expect anyone to survive on the stipend for three months.

After I called HR to confirm that my salary was covered, I did not try to avoid being seated. This was my first meaningful jury service.

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.

The idea that it is smart to get out of jury duty has probably done more damage to our democracy than anything else. Abdicating the duty to sit on a jury means someone else will need to fill that role. When smart people apply those talents to get out of jury duty, leaving the job to someone who is "too stupid or indifferent", they produce the situation we have today of juries deciding based on emotional influences and fast-talking lawyers instead of judging the facts and the law.

Yes, it can be annoying and it probably impacts your work schedule. These are insignificant costs compared to safeguarding justice and being able to exercise the most political power available regular citizens.

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.

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.

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.

> try fairly hard

Talk about being interested in learning about "jury nullification" or mention those words at all.

If that doesn't work, a casually-dropped slur or two directed at the defendant's race/nationality/etc. is sure to seal the deal.

Jury nullification and prejudice are only things in trial juries, not grand juries. Nothing to nullify if there's no case yet.

This is one of the costs of being a citizen in the USA. You do it because your fellow citizens depend on it.

There was an interesting story recently from a small mountain town here in Colorado. Seems the town had exhausted their current jury pool so court officers literally went out on the street and pressed people into service. "You, over there. Come here. You're now on a Jury". All quite legal.

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.

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

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

Your assertion is a big leap.

Does justice require a maximum penalty for every offense? Is it immoral somehow to plea down a first time DWI to DWAI and spare the taxpayer the cost of a trial, police overtime, etc? Does getting a life sentence vs. 30 years justify the cost, risk and trauma to the victims of a 1st degree murder trial?

I don't think you read my point in the way I intended for you to, and I'm sorry that my point could be misread in that way. I agree with all of your points.

I'm not saying at all that plea bargains shouldn't exist, I'm saying that at the moment there's an incentive to abuse them by indicting the accused on charges that they're very unlikely to be convicted of in court simply because it's known that the case will almost certainly be settled by plea bargain.

Indicting them on the greater charges simply strengthen the prosecutor's bargaining position, which I see as wrong.

We saw this in the article with the warning shot; if the other grand juror was correct and the warning shot was exactly that, then that charge would probably not stick in court.

However, by having that charge, they get to bargain for a far larger sentence, because the potential cost of going to court is far greater.

It also gives an incentive to (if someone opts for court) attempt to get them the highest possible sentence (if they are convicted) in order to set an example to future plea-bargainers.

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.

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.

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

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.

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.

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