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The Arizona County Grand Jury

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A former grand juror’s assessment of the Grand Jury system

(1st edition - September 2005) by A.O. Kime
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Having once served as a juror on a county Grand Jury in Arizona during the spring/summer of 2005, I had observed, witnessed and arrived at the following conclusions...

Of all the judicial mechanisms, the Grand Jury system seems to hold the most interest because, I went on to discover, it is a contentious issue within most legal, political and activist circles. While the Grand Jury system has a multitude of supporters, which even includes prosecuting attorneys (perhaps surprisingly), it also has its vocal critics. The support for the Grand Jury of course is due to the concept itself, being a magnificent instrument of justice, whereas the majority of its critics point to its weaknesses. This is somewhat ironic; it isn’t the concept itself under fire (per se), primarily its weaknesses. In other words, the Grand Jury is most often criticized because it doesn’t work well enough. It is too much under the control of the prosecution, many contend; while others go further to declare it is merely a ‘tool’ for the prosecution.

There are good reasons to believe it… during our indoctrination period (on legal procedures), which took about half the first day; the ‘presentation’ was conducted entirely by an attorney from the County Attorney’s Office. No presentation was heard from anyone representing the ‘other side of the aisle’, like a defense attorney… not even for a brief statement. At this point I began to realize this was creating an atmosphere favoring the prosecution.

While normally the selected grand jurors are to serve for four months, we only sat for three months because, due to illness, vacations and jurors moving away, we could no longer produce a quorum. At any rate, during that time we were never in contact with anyone except a prosecutor whose job it is to present us felony cases, and their ‘witnesses’… which are either city police officers, state highway patrolmen or other agents of the government (a probation officer for example). Note: a county Grand Jury only hears the 'less egregious' felony cases, not murder for example, nor do they handle misdemeanors.

Further creating this one-sided influential atmosphere, in payment for our jury duty ($12/day plus mileage) the prosecutor was the one who usually handed us our checks! This symbolic gesture could have an influential effect on some jurors and should be a job solely for the Clerk of the County Grand Jury (who occasionally would). It gives the impression we're working for the prosecutor! It is as much psychologically influencing as if a defendant were to massage the judge during recess. Of some additional psychological impact, it makes jurors feel less an 'independent body’. While one might doubt this would have much effect on the average juror, a number of such things can and does.

Questioning the prosecution's witnesses

While grand jurors may question a witness, and are always permitted to do so, I personally got the impression the prosecutor didn’t like it. In their rush-rush, fast-talking legal environment, of rapid-fire questioning of the witness by the prosecutor, a slow-talking, prodding juror seems held in contempt… especially one always asking questions. In other words, such an environment isn’t made conducive for questions from the jurors… and further dissuading it was the heavy workload… our Grand Jury was expected to hear 20 or more cases each daily sitting. It obviously became a time-factor for a couple of jurors… hesitant to spend too much time on any one case lest we’d run late. So, sadly, this un-conducive atmosphere for questioning was also created by a few jurors who would, between cases and during deliberations, openly express their disgust over the slow-paced cases and the passing time. These jurors seldom asked any questions and seemed to hold in contempt those who continually did… for ‘holding things up’.

Of all of mankind’s legal devices, the jury system is the greatest instrument to insure justice but in order to make it work judicially, jurors must have both a sense of responsibility and a sense of justice. Rubber-stamping everything the prosecutor puts forth for the sake of expediency goes beyond words of disgust. I contend however, that much of this ‘rubber-stamping’ is due to this pro-prosecution atmosphere allowed by the rules governing the working relationship between the prosecution and the Grand Jury.

This pro-prosecution atmosphere has proven itself more than merely an edge. In a shocking statistical report for fiscal 1994 found that federal grand juries returned indictments in 99.6% of the cases. I would venture to guess that figure roughly reflects the indictment rate for all other grand juries (state and county). Our particular (county) Grand Jury indicted about 90%.

Juror rubber-stamping

I contend rubber-stamping is done for the following reasons:

Crime... what does it mean?

While the Grand Jury is commissioned to "determine whether there is probable cause a crime was committed”, these instructions, presenting a dichotomous dilemma on the whole, are subject to interpretation. The prosecution assuredly believes 'probable cause' is the only variable (crime assumed) ...but it CAN BE legitimately construed to mean that two conditions, both 'probable cause' and 'crime', must be met (crime not assumed). For instance... it could be that yes, there was probable cause but no, it was not a crime. I believe 'not a crime' is the juror's exclusive justification to vote 'no' when he/she believes the law is 'out of line'. This frequently happens. Most often however a 'no' vote is because the juror believes probable cause did not exist. This might be due to flimsy evidence, suspicion of entrapment or doubts as to the witness's version.

But is this trying to cast doubt on the meaning of a commonly known term? After all, everyone knows what crime means... that is, everyone except the law. One viewpoint circulating (original source unknown) states:

Natural law theory of crime

"An alternative view of crime is derived from the theory of natural law. In this view, crime is the violation of individual rights. Since rights are considered as natural, rather than man-made, what constitutes a crime is also natural, in contrast to laws, which are man-made. Adam Smith illustrates this view, saying a smuggler would be an excellent citizen, "had not the laws of his country made that a crime which nature never meant to be so."

Natural law theory thus distinguishes between criminality and illegality, the former being derived from human nature, the latter being derived from the interests of those in power. The two concepts are sometimes expressed with the phrases "malum in se" and "malum prohibitum". This view leads to a seeming paradox, that an act can be illegal that is no crime, while a criminal act could be perfectly legal.

Many Enlightenment thinkers such as Adam Smith and the American Founding Fathers subscribed to this view to some extent, and it remains influential among so-called classical liberals and libertarians.

Persons convicted of serious crimes are often punished by being kept in prison, for a term of years. There are about 2 million people in prison in the United States."

During the indoctrination period, and at other times a juror asked the following be clarified, it was always stated (by the prosecution) that "the Grand Jury must determine whether there is probable cause a crime was committed”. It was never stated “whether there is probable cause a law was broken”… not once. There lies a contentious issue between jurors… is there a difference or not? I contend there CAN BE a difference; I share the growing belief that not all unlawful acts constitute an offense, which in turn is called a 'crime', an onerous, branding and legally-abused term. While most jurors openly stated there is NEVER a difference, that to break any law IS a crime (offense), curiously they weren’t always faithful to that belief… occasionally to vote against the prosecution in selected circumstances… especially a circumstance they personally believed the law is ‘out-of-line’. Of course those same jurors are quick to blast other jurors for doing the same thing in other cases. For example, juror #1 might not agree with drug paraphernalia laws and vote ‘no’ whereas juror #2, who voted ‘yes’, might not agree with the charges filed in another case involving a fistfight and vote ‘no’, whereas juror #1 voted ‘yes’. In both cases probable cause was not the issue but instead whether the law was ‘out of line’. Nonetheless, for reasons I'll soon explain, this is a very healthy situation... especially today.

While juror #1 might not believe possession of drug paraphernalia was a crime (in itself), there could be aggravating circumstances whereby he/she felt it was and, if 'probable cause' existed as well, then this would trigger a 'yes' vote. Similarly, if the circumstances surrounding the fistfight were different, juror #2 might vote 'yes'. But are these jurors taking too much upon themselves and judging the law as well? Yes in one respect... no in another.

So what does the dictionary say about crime?

Crime (n) 1: an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law; esp: a gross violation of law 2: a grave offense esp. against morality 3: criminal activity (efforts to fight ~) 4: something reprehensible, foolish, or disgraceful (it’s a ~ to waste good food)

What about the legal definition?

In Black’s Law Dictionary (a prestigious authority) it states:

crime. A social harm that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding

Curiously (although a common practice for Black’s Law Dictionary), it also added this quote:

“It is a curious fact that all the minor acts enumerated in the penal code of a state like, say, New York are in law called crimes, which includes both murder and overparking. It is a strong term to use for the latter, and of course the law has for centuries recognized that there are more serious and less serious crimes. At the common law, however, only two classes were recognized, serious crimes or felonies, and minor crimes or misdemeanors.” Max Radin, The Law and You 91 (1948)

In further searches for a legal definition, I discovered the definition of ‘crime’ differed. It seemed to depend on who wrote the definition and what historical legal basis or theory they favored. In that it is not uniformly described… it qualifies as a debatable issue. One definition even entangled it with mitigating circumstances while another had it as "the simultaneous concurrence of both ‘guilty action’ (actus reus) and ‘guilty mind’ (mens rea)", more commonly known as ‘intent’. While all these definitions are probably suitable for public consumption, for legal purposes none adequately defined it.

The problem with trying to define ‘crime’ in the current manner is that there is practically no consideration as to what crime definitively IS, instead it is defined as if a variable… hence the diversity in opinion. As currently described, crime is a convenient crock-pot to cook any law into a crime. In other words, a definition should be precise and inflexible... especially for legal purposes. For example, one cannot say a rose bush is a tree because it doesn’t match the biological description of a tree. Until crime is precisely defined, jaywalking and other such minor offenses can be made to be considered crimes. Chewing gum in class could be considered a crime. There should be no discretion in lawmaking as to what constitutes a crime… only the offense itself should determine whether it is a crime. For example, is a frog an amphibian or not? If crime is 'forbidden acts and/or social harm', who determines what they are? Until this is settled, call it a felony or call it a misdemeanor... but don't call it a crime.

Each and every law on the books cannot be, and should not be, stretched in order to be associated with crime. Actually, ‘egregiousness’ best describes crime, not unlawfulness universal. Likewise for moral trespasses... they cannot be, and should not be, stretched to be associated with crime.

But is dwelling on this aspect (crime/not crime) preposterous when 'probable cause' is all a juror should be concerned with? Well, not when you factor in the current on-going evolutionary process of the law and lawmaking. Only a few decades ago, 'probable cause' was all a juror felt necessary to consider... but things have changed. The legislatures have taken a different approach (tougher, outrageous laws) so they have changed; the courts are now subject to minimum guidelines so they have changed. To compensate for this, to keep justice afloat, jurors are being forced to change how they conduct themselves also... in effect altering the jury's role. Consciously or unconsciously, wittingly or unwittingly, jurors are focusing more on whether it is a crime (or not) as the secondary condition to indict. With crime attached to every lawbreaking instance, with minor infractions now considered felonies, with the overly stiff sentences imposed, jurors have been forced to choose between right and wrong themselves. After all, jurors must prepare themselves for the coming day they'll be asked to indict a ham sandwich.

Can all broken laws be described as crime?

In the end however, it shouldn't matter whether a juror has the opinion a broken law and crime are synonymous or not. In the name of justice, a juror’s personal opinion must always prevail as the highest authority. Besides, a juror does not have to reveal their reasoning... if he/she wanted to, they could vote 'no' because it was raining that day. At any rate, personal discretion was honored in our case as we were never pressured by the prosecution nor was the reasoning behind our vote ever questioned. Despite this ‘pro-prosecution’ atmosphere I allege exists, the freedom to vote our conscience was made perfectly clear by the prosecution. This was heartfelt… it made me feel proud (and grateful) to be an American. It took some of the disgust out of my disgustedness.

It is therefore wise, prudent, and responsible of the prosecution to phrase the ‘instructions’ to say (as they do)… “the Grand Jury must determine whether there is probable cause a crime was committed”. To say otherwise would be viewed as an attempt to usurp the jury system. It seems obvious (now) that the prosecution knew this all along and therefore chose not to address this curious and contentious matter during the indoctrination period, nor did they anytime thereafter. Like a plague, it seemed, they avoided it.

While initially I thought it would be helpful for jurors to have someone from the ‘other side of the aisle’ during the indoctrination… in order to point out any distinction (in their opinion) between ‘crime’ and ‘unlawful’… I’ve since changed my mind. Pointing out a distinction could prove disastrous to both the defense (later) and the Grand Jury system… in that it would force the prosecution, otherwise seemingly content not to voice their opinion, to openly state their (probable) belief that there is no difference between ‘crime’ and ‘a broken law’. It would be damaging to the Grand Jury system because if the prosecution were to emphatically state there was no difference, pounding the point home perhaps, such would have great sway with many jurors. But the prosecution didn’t... nor do they currently NEED to make such a statement. I believe they are counting on the fact most jurors won’t recognize (or believe) a distinction exists. And it seemed to hold true… those jurors almost invariably voted in favor of an indictment but, I think, primarily because of ‘probable cause’. While I believe SOME mindless ‘rubber-stamping’ occurred, probable cause was in the mind of those jurors in voting 'yes'. As to how many 'yes' votes the atmosphere can claim, I can't say, but I think my guess would be horrifying.

However the presence of a defense attorney during the indoctrination period would be helpful in conveying a sense of independence to the jurors. Even if the attorney was only allowed to introduce themselves and serve as an observer would be enough. As an officer of the court, it is only proper one should be present... just as a judge was present during the selection process. From the beginning to end of our grand jurors term, the defense was conspicuously absent. We saw a wingless eagle.

The Grand Jury as a 'screen'

While the Grand Jury was conceived to serve as a ‘screen’ to prevent unwarranted charges from being filed in the first place… 'screen' was a term the prosecution curiously never mentioned (perhaps intentionally). Such a characterization would have been helpful because incredibly, even after our ‘indoctrination’ several jurors were still unsure what role the Grand Jury was supposed to play. With other jurors left trying to characterize it for them, the unsure eventually agreed ‘screen’ said it best.

Without being fully enlightened as to how the Grand Jury is to technically operate initially, more specifically how to conduct our questioning and deliberations, during the first couple sessions every single juror was in a quandary. This fact was unanimously expressed. We had to figure things out for ourselves… and, as a result, most ended up with somewhat different ideas. We were also left to develop our own procedural guidelines for how to deliberate and vote. In retrospect, it was best we weren’t given any guidelines lest feel under external control. By the 3rd session we had things running smoothly. We were proud of ourselves... it was democracy in action.

At any rate, the Grand Jury must then vote to either indict (called a ‘true bill’)… or not to indict (called a ‘no bill’). In Arizona, it requires nine ‘yes’ votes to indict. While 16 jurors comprise the Grand Jury (with four alternates available), it may operate with less (due to absenteeism). Interestingly, whether to proceed with less is the prosecutor’s call… more symbolism, it seems, of the prosecution ‘running things’. On the other hand, it could be a matter of the prosecution waiving their rights to have all 16 present (I’m not sure). In one particular session the prosecution decided to go ahead with only 11 jurors but of course fewer jurors lessen the prosecutor’s chance for an indictment. That held true… three ‘no bills’ were issued in that session.

As to the overall conduct of the prosecution, I must add I was impressed by the professionalism displayed by the County Attorney… sure never to be legally out-of-bounds it seemed. And they weren’t, I don’t think, not once. Even though they carried out their duties entirely within the legal framework, nonetheless I felt they were taking advantage of their liberties with the Grand Jury. While normally one can’t fault someone for trying to ‘win’, but when justice is at stake, we should. It shouldn’t be a matter of the government ‘winning’ and the lawmakers should tighten the rules. Fine-tuning is all that is required for this otherwise wonderful system to provide, as mandated, full justice for the accused.

Summary

In light of the ambiguousness of the word ‘crime’, so loosely defined, it seems odd that the legal establishment would use it. While the public has a general picture of crime, assuredly being something of serious nature, gross, severe and egregious violations mainly, assuredly to include such things as murder, theft, rape and kidnapping, and even some white-collar offenses, within that picture I don't see the lesser offenses which the law calls misdemeanors.

Within that picture, I don’t see so many felonies either. However I picture things as they once were, back in the 50's, 60's and 70's when there were only a handful of felonies. Today in Arizona, almost everything is a felony. Possessing a bong or yelling at your wife is now on a par with murder. If you give someone a dirty look today, legally considered 'threatening and intimidating', that is also a felony. If you're guilty of these, you're a criminal. Maybe this explains the 'no bills'.

For legal purposes, perhaps the word ‘crime’ shouldn’t be used at all… let the laymen have it. After all, ‘felony’ and ‘misdemeanor’ is all the legal system really needs. However to do so would require the instructions given the Grand Jury be altered. I might suggest this one... “the Grand Jury must determine whether the law is just and probably broken sufficiently”. It smacks of the good old days of the Roman 12 Tables (c. 450 BCE) (external website)

The idealistic concept of commissioning the Grand Jury to judge both probable cause AND the justness of the law (two conditions in order to indict) would be a milestone. As expressed daily by each and every jury throughout the country, it would be a continual monitor of the public sentiments as to the law. It is the next step forward. Actually, such a commission would merely sanctify what is already occurring... albeit far less than it should.

A.O. Kime

Note (Feb 2014): While my characterizations and conclusions above are applicable to how the Grand Jury is currently structured and currently operates, they don’t take into account the Grand Jury system as was originally intended (before it was greatly altered by legislative divisiveness in 1946). See The Federal Grand Jury is the 4th branch of government

Last modified: 03/06/16