"Don’t think about what happens after you vote"

By Phil Basso, Deputy Executive Director, APHSA VIEWS 1

Everything looked different to me on that 13th day, and on all the others…


(This is part 3 of an ongoing series. All previous posts can be found here: Structural Inequities in the Criminal Justice System: A Personal Account.)


Grand juries don’t hear one case at a time with all the live witnesses and evidence lined up in sequence by the prosecutor as they would do for a regular trial. We heard evidence on 73 criminal felony cases. Any given case was presented to us piecemeal, over any number of days or weeks. Each case was led by one of the various prosecutors working for the DC criminal court. We worked with maybe 20 prosecutors in all, mostly young and highly skilled, and some that even came to feel like friends. 


Each morning we would arrive through tight security procedures at 9:00 am and leave at 4:00 pm. There were no cell phones or electronic devices allowed. During the day we’d hear parts of three or four cases, have two short breaks and an hour lunch, and otherwise talk with each other to fill the downtime whenever it occurred. The elements of evidence were presented in whatever order the particular prosecutor could arrange with witnesses and case detectives.  Our schedule was managed and protected by a serious but kindhearted official who the prosecutors both feared and respected. 


Each of us was given a yellow legal pad and pen to keep track of each case, the evidence we heard, and any notes we each chose to make from our own perspectives on witness credibility and the probable cause tests being addressed. These pads were locked away each night—we never studied them or further developed our notes and any questions we might have.  By the time we were asked to deliberate and vote on a case, these legal pads served as our best recall. 


The average time we had to deliberate and vote was around 20 minutes per case, including cases with more than 10 “counts” or elements of criminal behavior. Using a gun in an assault would carry at least two counts, just to illustrate. When asked to vote on an indictment, it was often near the end of a day or near our lunch break. We were ultimately asked to vote for an indictment on about a third of the 73 cases. Why not more? Sometimes we heard testimony on a case from a few live witnesses but never voted because the case was still being developed—this often takes 100 days in DC. At other times, we heard written transcripts from witnesses who met with prior grand juries—one of us taking the voice of prosecutor and another of the witness, and these readings would typically last for about 30 minutes. 


All of the above impacted our grand jury’s capacity to listen, ask good questions, weigh evidence carefully, record solid information for later use in deliberations, and make optimal decisions. Besides these challenges, jurors themselves bring their own tendencies to the task.  Some people would accept a prosecutor’s requests automatically, while folks like Cokie (see my last blog entry) had a different take. Some people almost always vote with the likely majority because to vote against meant defending your contrary position to a room full of relative strangers.       


Throughout this cycle of evidence and indictment votes, we were reminded that our role was to determine probable cause, not guilt beyond a reasonable doubt. That was the job of the trial jury—12 people who would have to vote unanimously to find someone guilty. We were told that probable cause was the “lowest legal bar” for the court to establish. This continual reinforcement served to focus us on DC’s written probable cause standards for the different felony counts before us. And in the earliest days of our jury duty, my primary focus for each case was simple: “Did the crime probably occur? Did the accused probably do it? Is the evidence credible?” 


That was until our 12th day of jury duty. On that day our general liaison happened to say,“Don’t think about what happens after you vote.”  She meant to convey, once again, that we should put out of our minds the job of the trial jury, and not try and do their job for them. But like a flash of light, her words hit me in a different way. Everything looked different to me on that 13th day, and on all the others...


*This is part 3 of an ongoing series, Structural Inequities in the Criminal Justice System: A Personal Account. You can catch up here and check back every Friday for more.