Tuesday, April 11, 2006

My Grand Jury Experience.

NOTE: I would like to thank Navajo County Attorney Mel Bowers for reviewing this post to check for accuracy and to make sure that nothing in this post compromises any ongoing criminal case or investigation.

Recently, (this past Thursday in fact), I completed my three month term as a member of the Navajo County Grand Jury. Other than a brief mention that I was called for potential duty in my January 10 blog entry on Jim Weiers' ethical troubles, I have said nothing about about this during the time that I served on the Grand Jury. I would like to address what I learned (which was a great deal) here.

To begin with, a lot of people don't understand the difference between what a Grand Jury does, and a regular jury. A Grand Jury hears some of the evidence about a large number of cases, and decides if there is 'probable cause.' Probable cause is whether there is enough evidence that 1) a crime was committed, and 2) that the person or persons under investigation committed the crime, to issue an indictment. An indictment means that the case will go forward into the criminal justice system, where a higher level of proof, beyond a reasonable doubt, is needed to obtain a conviction. It is true that a judge can also hold an evidentiary hearing and to move an issue forward, but Grand Juries usually hear the more serious cases. Most of the time, we heard testimony from one person, generally a law enforcement officer (who may not have been involved in the actual case but is reading a report by the officer who was), trying to convince us that there was enough evidence to indict. And most cases were pretty clear, but a few were not, and we issued several 'no bills' (a vote to not indict) over the course of the term. It is also true that we vote separately on each charge, and in some cases we indicted on some charges and not on other charges. In order to serve on a Grand Jury, we have to be willing to uphold the law. So, for example, I favor decriminalization of marijuana for adults, including decriminalizing its production, transport and sale, but in cases involving marijuana, the question was not 'do you think this should be a felony' but rather 'is this a felony according to current statutes?' As such I voted to indict a number of people on marijuana related charges (and there were a lot of them) because I was sworn to uphold the law even though I personally disagreed with the law I was voting on (and no, I don't personally use it or advocate its use).

We heard cases from all over the county (although cases from the reservation, unless they involve non-tribal members, are handled through the tribal court system except for really serious cases which are moved into the federal courts.) Because our county is nearly two hundred and fifty miles from the Utah border in the north to the far south (the county lines here are terrible and were drawn in the early 1900's with the explicit goal of splitting the reservation and denying Navajos control over any county government), some members had to drive for hours each way to get to Holbrook, the county seat. Luckily, I only had to drive fifteen miles each way.

My observations were as follows:

1. I've been told by people in the criminal justice system that about half of the cases are drug related. So I kept a running tally. I was excused for two weeks for various reasons, but on the weeks I was there, we had 121 cases, and 51 of them were drug cases, or cases which at least involved illegal drugs. Throw in alcohol related cases (such as DUI related charges or crimes committed under the influence of alcohol), and it does in fact jump up to half or more. Probably at least eighty percent of the drug cases involved either marijuana or methamphetamine (meth). Many people had both. I should add that while I mentioned above, I disagree with the current laws on marijuana, my complaint with laws on methamphetamine is that they are probably not tough enough. Check out this site for information on current attempts to toughen laws on meth. Meth kills, it destroys lives and it is doing to our communities what crack was a dozen years ago. In fact, I was living in Torrance County, New Mexico, between 1994 and 1997 and there was a case there in which a man who was jacked up on meth and driving through on the freeway imagined that his teenage son was the devil, cut his son's head off and threw it out onto the freeway. Arizona law discriminates between marijuana, 'narcotic drugs' (cocaine, most prescription drugs, opiates) and 'dangerous drugs' (meth, and other artificially manufactured drugs). Right now, dangerous drugs are a higher class of felony, but people can go to prison for the production, sale and transport of either, and also will get out of prison and likely have few other options than to return to the same life that got them into prison (see the prison that follows prison for a discussion I did on this topic.) We have a serious problem with meth, probably just like the rest of America.

Observation #2: There are a lot of mistakes. Advice if you are ever on the wrong side of the law (hopefully no one who reads this blog will be): Challenge everything. If you have an attorney, tell him or her to challenge everything. Some of the indictments we got were riddled with errors. In fact, we were asked on one occasion to return an indictment for assault (a class three felony) when after hearing testimony it turned out that nothing even remotely like assault had even been committed (there were some property crimes, but that was all). On another occasion, we got an indictment to consider that was complete nonsense when reading through it. There were quite a few other errors besides these. Luckily, we all asked questions about some of these mistakes. But I can see how things get thrown out on 'technicalities'-- for example, an indictment says a crime was committed in the vicinity of an address when in fact that particular crime occurred several miles away (yes, we had at least one of those that had to be corrected as well.) To be honest, I was surprised by how many mistakes there were in indictments, ranging from minor English errors to major errors like the assault that never happened, considering that they are supposed to have been prepared professionally by people with law degrees. Some of them were very well written, but some were not at all. The County Attorney makes the point that some people write better than others, and that a proposed indictment does not become an indictment until a Grand Jury accepts it, but it is also true that Grand Juries are not all the same. On ours, there were about three people who probably asked 90% of the questions and caught 90% of the mistakes that were caught, so if this is typical then the law of averages says that sometimes there will be Grand Juries who don't ask many questions or look very hard for mistakes. In any case, why should the Grand Jury be the proofreaders?

Observation #3: The idiots in the Legislature who preach about doing 'more with less' are just that-- idiots. We had a lot of cases that were two or three years old, because (and we were told this up front) the office had been shorthanded for awhile. Now, I happen to know through my political work and talking with some of the county commissioners that they have been on a budget that is beyond tight, to a point approaching malnutrition, and one reason for the extended shorthandedness was because of hiring freezes and some limited layoffs that occurred county wide. This is a direct result of legislative budget cuts. Just as Arizona's K-12 teachers are paid 50th in the nation, our counties (and Navajo county is no exception) are chronically shortchanged by people whose philosophy about government is to try and find ways to starve, shrink, and where possible get rid of it instead of thinking about government as a useful tool in society and a way to guide progress for the common good. Not that I expect that Jake Flake or some of the others down there read this blog, but I will say it again. No, I DON'T want another tax cut. I want government that is well-funded and capable of carrying out its duties. I have no problem with governmental accountability, but in order to be accountable, you have to fund it above the level of 'just keeping it going.' And until we elect a legislature that isn't afraid to change the paradigm from one of 'how far can we cut taxes/budgets' to 'how can we guarantee that government receives and is then accountable for the funding it needs to function well,' we will continue to see these sorts of systemic problems. I'm sure that this played into why there were so many mistakes in the indictments.

Observation #4: A few police officers will cut corners (not what you want when you are deciding on matters that affect people's lives). On one occasion, we heard from a police officer who mentioned a person's prior criminal record and the representative from the county attorney's office had to advise the jury to ignore that comment and told the police officer he shouldn't mention that. So five minutes after that case ended, we had the same police officer back on the stand in regard to another case involving someone else, and he did exactly the same thing (and got the same warning.) He should know the law on this, and the first time could have been an honest mistake but I really felt the second time was intentional. Now, the evidence was easily sufficient even without that, so I have to question what his motives were. There were also cases in which the investigation seemed to be particularly slipshod, with even basic information either not collected or not put into the report, which is unfair to the cop testifying when he has to look in the report and can't find the answer to a question such as 'how tall is this person' or 'did someone verify that the item this person had was the one stolen?' I have a lot of friends who are police officers, and I believe that most of them act honorably and do the best job they can, and certainly deserve respect and support (support meaning better equipment and higher pay-- our cops are underfunded by our misers down in Phoenix as well) for the dangerous and thankless job they do. But I'm also convinced that there are some of the other kind out there, and we saw both types testify.

Observation # 5: There are a lot of stupid criminals. Some of the people we heard about took pictures of themselves breaking the law, committed a string of crimes in which they left personal items behind at every scene, or were really dense in other ways, which made the cop's job much easier. Incidentally, people who made false statements to police were rarely charged with making them (I asked about this and was told it is a misdemeanor and it is generally charged separately) while at least as far as I could tell, a confession often led to more charges. Now, I do believe that a person should be charged with whatever crimes they have committed, but just a personal note-- it seems that people who lie to police may end up better off (especially in terms of having a stronger case) than the ones who turn themselves in and confess. I know, that this can be taken into account at sentencing, but let's be honest-- is it?

In any case, I am glad to have had this opportunity. I learned a great deal about how the system works, both for better and worse.

Cross posted at Night Bird's Fountain.


Anonymous said...

What an eye opening experience! Just wanted to tell you that it was interesting to hear about the process as I have never even done jury duty- I've been "Summoned" but then they did not get to my number and by the end of the week I had "served". Done. Until next time!

I haven't been at many blogs especially lately (and I still need to check in at Nightbird's Fountain!) because it gets so hard to keep up- there are some great bloggers and I wish I could give each the time and attention I would prefer. In addition to the blogs you know of, I am contributing now at Blue Republic. I enjoy the "one stop shopping" of the forums when I get busy- lots of topics at a glance and easy to navigate and follow up on a thread. Sometimes thats all I have time for! Thanks Eli. Check in with you soon.

Eli Blake said...

It was an eye-opener, that's for sure.

jen said...

thank you for sharing this eli, it's very interesting. i've never been called to serve.

Kim said...

Thank you Eli... It is very enlightening.

MadisonMan said...

How interesting. I was on a jury for the first time in March, but it wasn't a Grand Jury.

Anonymous said...

Hello Eli,

I know this is a very old post but I must respond. First off I appreciate your candor, honesty, and mostly your willingness to share your experience. I found your post truly fascinating. I personally have been subjected to decisions made by a far different version of a Grand Jury than the one you describe. Mine was the La Paz County Grand Jury, my Grand Jury, and they proved to be nothing more than a means for the County Attorney to circumvent the preliminary hearing process. The members of the La Paz County Grand Jury that handed down my indictment were definitely not burdened with any sense of obligation to question anything. I have no aversion to the members individually and as far as I know they are decent people. I have long accepted that I was dealt the hand I was dealt. However, I do question their intelligence and lack of individual thinking. I would also love to one day find out whether they ever had, or simply didn’t use, whatever it is that you possess that influenced your sense of obligation in the performance of your duties on the Grand Jury. And, I would have given anything to have had someone with your integrity on that jury.

The reason for my comment here is to ask you the question(s) that I would have loved to ask my Grand Jury (GJ). I will tell you right up front that I am not judging you and I will respect any response you may, or may not, give. I have never been on a GJ and I have no real idea how they work. With that, I hope that you will be able to clarify a few things for me.

You laid out the differences between what a GJ does and what a regular Jury does. Rather, you described what the purpose or function of a GJ, or at least the GJ in your county as you understand it, and that’s fair.

My first question is, “how do you define ‘evidence’?” You stated,
“A Grand Jury hears some of the evidence about a large number of cases, and decides if there is 'probable cause”.

Is that really the extent of it?

You “hear” what is told to you by the County Attorney (CA) and whatever police officer he is questioning and the GJ makes a decision based on that?

Did you ever ask to see or touch any of the so called evidence presented to you?

Is that even an option you had?

You didn’t allude to anything you relied on to make your determinations other than the CA’s indictment and the testimony given by some police officer. Here again, I am assuming nothing, perhaps you couldn’t mention any of the other things, I don’t know.

Is there more to it? Is the testimony of the police as questioned by the CA just the beginning?

Did you ever receive, or asked to examine, any tangible evidence?

My experience with a GJ has taught me that all a CA needs to do is to concoct a story and instruct the GJ to indict. The GJ then returns the indictment with no regard to whether what they were told is either accurate or even true.

Do you recall any of the reasons for any of the “no bill” decisions?

While listening to testimony given by, for example a police officer, were their honesty, truthfulness and veracity established without question?

How much credibility did you bestow to the police and CA at the beginning of any testimony?

Would it be fair to say that as far as the GJ was concerned, if the CA or police said it, it must be true?


Anonymous said...
This comment has been removed by the author.
Anonymous said...

You briefly mentioned people that make false statements to police and how they were rarely charged.

Does your meaning of the term “false statement” extend to the police?

Did you ever have an occasion to being subjected to any witness before you committing perjury?

Did you, or was it even your job, to determine whether what you were being told was true or not true?

Do you think if you believed what a police officer was saying was untruthful it would have mattered or changed anything?

Would it be accurate to say, “If what you were told COULD be true, you would find probable cause”?

Did you ever hear testimony from a regular citizen? (Not a police officer or other agent of the state)

If so, were you asked to consider, or did you consider, their credibility?

Did you consider the police as “just another witness” or something different?

Do you feel, as a juror, you were ever lied to by the police or CA?

If so, Would/did it affect their credibility in subsequent testimony?

What, if any, criteria did you, or the jury as a whole, use to establish the credibility of witnesses?

If there was some type of attempt to determine the credibility of the witnesses that testified was it applied to every witness the same?

And finally, as a Grand Juror, what would your response be to learning that the testimony given in a particular case by a police officer was entirely untrue, and the CA that questioned the office was not only aware of the perjury but was responsible for orchestrating it?

I honestly hope that these questions do not offend you. I truly respect you and I understand I wasn’t there and I have no real practical experience inside the GJ so I appreciate your insight.


Anonymous said...

I am currently serving on a grand jury and can tell you that, based on previous study I've done, grand juries have an inarguable right (and some would say, obligation) to vote "no true bill" (in other words, to refuse to indict) based on compassion for the defendant and/or the opinion that, while the defendant is probably guilty, the law is unjust. Of course, the DA's NEVER tell the jury this. They don't want them to know. You had every right, and no legal obligation at all, to refuse to indict on marijuana or other illegal drug possession laws if you believe those laws are wrong. In fact, my grand jury did this two days ago, and no one batted an eye (at least, not in front of us!).

Hope you'll check this out for next time.

Eli Blake said...

Sweet 6's and anonymous:

Sorry to take so long to get back to you. I'm only here now because I am linking to this post from facebook.

Yes, not a lot of evidence was presented but in most cases it wasn't needed. 'Probable cause' requires a low level of evidence: reason to believe that 1) a crime was committed, and 2) that the person accused is the person who committed the crime.

I'm sure I was lied to (I alluded to some of the cops going over the line on the stand.) But I don't know for sure which cops, or when. Unless they contradict themselves or something I have to assume the officer is telling the truth.

As I said, some of the indictments were way out of line with the records. About three of us picked over the records scrupulously and sometimes talked the others into not handing down an indictment (one case I remember involved a quote by an eyewitness who described the perpetrator as 'a short man.' So we asked how tall the accused was and the answer is that he was 6'4" So in that instance we refused to return an indictment. But I suspect that some grand juries would never have asked that question and the indictment would have been returned.

Keep in mind too that there is nothing, if an indictment is not returned that prevents the county attorney from presenting the same case to the next grand jury that is seated, especially if it was presented near the end of our three month stint.

There is also a difference in judges. Most often our indictments were examined and signed off on by Judge Tom Wing. But when he was gone, they were signed off on by Judge Dale Nielsen (both now no longer on the bench.) Judge Wing would look over them very carefully and on at least two occasions he refused to sign indictments we had sent him. Judge Nielsen in contrast cast a cursory look at each one and signed it pretty much automatically.