A Brooklyn grand jury has something to teach us about the rule of law — and about the CIA's secret prisons and Guantanamo too.
The author of the essay that follows, John Sifton, is an attorney and private investigator, and the director of One World Research, an investigation firm specializing in human rights and public interest cases. He posted the essay that follows to a mailing list I belong to. I liked it and asked him if I could link to it, but it turned out that it hasn't been published anywhere. John has graciously allowed me to publish it here for the first time.
Grand Jury Brooklyn: Due Process, from NYC to CIA
By John Sifton
A few months ago, in the waning days of summer, I experienced the privilege-and the banality-of serving on a criminal grand jury in Brooklyn.
For two weeks, sworn to secrecy, my fellow jurors and I heard indictments in a catalog of felony cases: murder, assault, sexual abuse, drug and weapon possession, robbery, larceny, and sundry other violations of the New York Penal Code. We listened to testimony from victims, witnesses, police officers, and alleged perpetrators and alibi-providers, and we deliberated on whether to issue indictments. It was an edifying ordeal.
My jury of 23 was a classic Brooklyn bevy: various ethnicities, ages, races, and backgrounds. Our group included subway train drivers, sanitation workers, teachers, and various others from across the socio-economic ladder (but gravitating toward the lower end). The core of the jury was comprised of women, 18 in total: eleven black, two white, two Hispanic (one old and one young), a Russian matriarch, a two young woman of East Asian and South Asian descent. The remaining five males included three black men (including the foreman), me (“the white guy”) and a very young Israeli with dual citizenship who had just finished military service guarding border posts on the West Bank. During the two weeks of service, some interesting and unexpected cliques formed.
How I came to sit on this jury was a matter of controversy to my friends and employers.
“You couldn't get out of it?” friends asked. Colleagues were also incredulous. I am a human rights lawyer and a private investigator and I work on a lot of cases involving detainees at Guantanamo Bay or secret CIA prisons-facilities in which grand juries are not used. Few believed that prosecutors allowed me to serve. Others were amazed that I didn't lie outright in order to avoid service, as others apparently have. (Various lies suggested: “I'm a Quaker, etc.” “I'm a vociferous racist; I just can't be impartial,” and “I typically have to urinate every five to ten minutes.”)
The truth is, it isn't easy to get out of grand jury service. Grand juries aren't like trial juries. Unlike trial juries, there is no adversarial process, no judges and no lawyers for the defendants; the only officials present are Assistant District Attorneys (ADAs), who run the process with a subtle but steely fist. The ADAs aren't as anxious about particular jurors as attorneys might be with trial juries. Unlike with a trial jury, votes are not as momentous, and a single juror is not as vital.
After all, grand juries do not decide guilt. Instead, they vote to indict people, and the voting need not be unanimous, nor do those who vote to indict need to be convinced beyond a reasonable doubt that the accused committed a crime. All that is needed for an indictment is that a majority of the jury, 12 out of 23, believe that it is reasonably likely that the person accused of a crime actually committed it, based on the evidence presented. Twelve Angry Men, it's not. A single Henry Fonda character, or even a vacillating Hamlet, can't screw up an indictment.
So there was little chance of escape. In the initial excusal process, wardens excuse non-working parents with children under five, doctors, non-English speakers, certain small business owners, and people with serious health problems. Others postpone their service temporarily, as I did on three previous occasions. But there are few hopes beyond this. Once you-the hapless citizen of Brooklyn-receive your summons, you're snagged in a net from which extrication is impossible. If you're a citizen, have a pulse, and live in Brooklyn, you're going to be chosen. (And if you're not chosen-say, because the juries that day are filled-they'll call you back a few weeks later when they do need you.)
What happens on a Grand Jury? I am forbidden by law to write about the details, as jurors are sworn to secrecy about the cases presented. But to generalize permissibly, the process goes like this on any given day:
An ADA walks in, closes the door, and says, “Good morning ladies and gentlemen of the Grand Jury.” To which some of the chipper respond, “Good morning!”
The prosecutor then proceeds through a set of formalities: “Mr. Foreperson: is there a quorum present?” (The answer is always “Yes.” A quorum is 16 people, and the prosecutor doesn't come into the room unless a quorum is there.)
“Let the record reflect that there is. Ladies and gentlemen of the grand jury, today I will be presenting you with evidence in the case of the People of New York vs. [the name of the perpetrator]… . At the conclusion of this case I hope to present you with charges for assault and related offenses [or homicide, reckless endangerment, sexual abuse, possession of a firearm, or some other offense]. I will now call Officer O'Sullivan.”
We would then hear from police officers, some of them undercover officers who looked, convincingly, like most of the criminal defendants. Often we heard from the victims too: bodega owners who were robbed, tenants who were accosted by landlords, old ladies whose purses were snatched-a parade of men and women who, for various economic, ethnic, or emotional reasons, had been shot, stabbed, punched, pushed down stairs, or hit over the head with heavy objects.
For some cases, a defendant might also take the stand, in his or her defense. The gist of their testimony: “It didn't happen the way you think.” My fellow jurors appeared to be particularly swayed if defendants broke down and cried while testifying-if they did, we might return a dismissal of charges. It would be hard to cry on demand, if you were lying, we figured.
The proceedings were often uncomfortable. After testimony was given, the prosecutor would excuse a witness and then ask us whether we wanted to ask the witness any particular follow-up questions. (Jurors are not allowed to question witnesses directly.) Some jurors asked for important questions, for instance: “Can you ask Ms. Jones how far she was from Mr. Taylor when he handed the bag of powdery white substance to Mr. Jenkins?” But some jurors requested exceedingly irrelevant or simply improper questions, or even started deliberating with the district attorney still present: “So, what I want to know is, how can we trust this undercover police officer? How do we know he isn't just trying to put this guy in jail? He has all those tattoos.” Or: “He just seems untrustworthy to me.” One juror seemed to fashion herself an amateur sleuth of some kind, and was a conspiracy theorist: she simply doubted anything and everything that anyone said.
During our breaks, we ended up talking a lot. We asked the train driver about working in the subway. (“Have you ever run anyone over?”) School teachers complained about the Board of Education. The Israeli kid, a modern Orthodox, answered dozens of questions from others about Judaism and Israel (“Why do those guys [Hasidim] wear furry hats?” and “How do bald people keep the thing [pointing to the yarmulke] on their head?”)
We also talked about local politics, gossip (intriguingly intricate critiques of Foxy Brown and the various girlfriends of 50 Cent), television shows, the war in Iraq, and other issues of our day (steroid use, polygamy). We cracked jokes and stared into space, and pondered society and the meaning of “due process of law.” I also dropped catalytic comments starting discussions about how our jury process compared to what terrorism suspects face in secret CIA detention facilities, or at Guantanamo Bay (more on this below).
The deliberations were even more painful. When the time came, the prosecutor would instruct us on the law, and then leave the room with the court reporter, and we would be left alone. After the foreman reviewed the charges, our discussion would begin.
Often the issue before us was whether a certain alleged crime, assault for instance, could also amount to a higher charge, such as aggravated assault. The issues were difficult-was the defendant attempting to kill the defendant, just hurt him, or was he defending himself? We would try to reason with each other, we argued, we even yelled at each other. There was a lot of machismo, especially among the women: “Don't start with me sister! You don't want me to go there!” That sort of thing.
Eventually we would vote, and issue indictments, or not. In many cases, we returned at least some indictments, if only because many of the cases were simple and the evidence direct. (One particular ADA, a tall and handsome black man with impeccable suits, had it so easy with the women that I started teasing some of them about it. One juror said, “I just can't concentrate when that man is in the room. He is just too … hot. Hot!”)
But sometimes, ADAs stretched too far on their charges, and we called them out on it. For instance, during the first week, one ADA tried to make us indict three separate people in a specific crime, on identical charges (I can't go into specifics about the particular crime, but it involved a specific person committing a particular crime against a specific person). Only one person actually committed the main criminal act, though the others could legally be charged if they intended to aid the primary actor. Since we heard no evidence that the other two did intend to aid the primary actor, we refused to indict the two who aided him (though we did indict the primary actor). Interestingly, after we dismissed the charges against the two non-primary actors, our mood was bashful, but we were proud. Most of the cases typically resulted in an indictment, and the process sometimes took on a factory assembly line resemblance. But in that case, instead of being steamrolled through the process, we'd actually done something to change the course of the proceedings. We meant something.
Which brings us to the existential issue-and to a discussion about secret CIA jails and Guantanamo Bay. Why was this jury convened? What was the purpose of this exercise-the State of New York gathering together 23 random citizens to decide whether the police and District Attorney's office had gathered legally sufficient evidence to indict fellow human beings, and have them stand trial for their alleged crimes?
Well, it's simple: the whole process is mandated by the U.S. Constitution and the Constitution of the State of New York. As the 5th Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… . nor [shall any person] be deprived of life, liberty, or property, without due process of law.” The same is applicable in New York under Article 1, Sec. 6 of the Constitution of New York. These provisions go back hundreds of years, even to New Amsterdam. They serve as basic guarantees at the center of our criminal justice system: namely, that the jailing of suspected criminals must be justified before an independent body representing the polity-a set of people representing society at large-and that the justification for detention must be part of an established process of law.
Of course, as we on the grand jury came to realize, it's a busy system: Hearing cases, we came to appreciate the fact that all over Brooklyn, and all over the United States, literally every hour of every day, people are committing crimes.
Some of the crimes that are occurring in America are mundane: the drug dealer selling narcotics, the drunk driving a car. And some crimes are horrifying: a man selling pictures of his stepdaughter over the internet, or a group of white supremacists beating up a Sikh gas station attendant. And other crimes are very complex: A grafter setting up a string of bogus companies in various countries to launder money for criminals engaged in human trafficking, or even worse: a transnational radical armed group plotting and raising money to carry out violent attacks on civilian and military targets in the United States and abroad. As jurors, we came to see a sample of this sheer scope of criminality in the United States.
We also came to appreciate the scope of the system created to manage it. Americans rarely get to see, up close, the process in which our local, state, and federal governments take suspected perpetrators into custody and deprive them of their liberty, temporarily at first, while they are charged with a crime and processed, and then permanently if they are found by trial to have actually committed crimes. Of course, it's a flawed process-a deeply flawed process that accentuates the inequalities of our society. Nevertheless, serving on a jury you are made to remember-by the ritual of the courtroom-that the process is still that: a process. And the contours of this process are defined by law and established practice (hence, the concept of due process). Moreover, this process is ultimately subject to checks and balances. The police, as prime detainers and deniers of liberty, are subject to review by the judiciary and the polity at large.
Yet, as one of my fellow jurors pointed out during a break: “There ain't nothing like this for the guys at Guantanamo Bay.” Indeed, nor for terrorism suspects in secret CIA jails.
So, some of us came to ask ourselves-why not?
During breaks, I framed the question to some others: Why is the Bush administration so hostile to putting high value terrorism suspects into a regular criminal law system? Why couldn't a jury just like us-our jury-handle it? If we, a predominately minority and female-dominated jury in Brooklyn, one of the most liberal places in the United States, voted to indict almost everyone presented to us, why would the Bush administration be so afraid of putting terrorism suspects in civilian court?
All of the administration's arguments about Guantanamo and CIA prisons-about practicality, guarding classified intelligence gathering secrets, and security-all of these have analogies with the criminal law cases we heard on our grand jury.
As we came to understand, police worry about practicalities too, the secrecy around their undercover officers and informants, and the security of witnesses and juries. “The stakes” can't be the issue either: ordinary criminals in the United States kill and injure far more people than terrorists.
I don't mean to suggest we were a perfect jury. We were not. Some of the jurors among us struck me as hopelessly illogical. But at the end of the day, we made good decisions. It was fitting and proper that the State of New York and local government of Brooklyn trusted us to listen to secret information from police, and then deliberate and make important decisions about how to deal with criminal suspects.
Why the federal government can't trust citizens to do the same with high level terrorism suspects-this, understandably, was a subject we never settled.
© 2007 John Sifton