A remarkable story out of North Carolina this weekend raises a question worth discussing 799 years after the signing of the Magna Carta: Has the grand jury outlived its usefulness in our criminal justice systems? Have communities become too large, have people become too busy, have lawmakers ratified too many criminal statutes, have judges paid too little attention, have prosecutors become too aggressive, for grand juries to provide the critical screening role they once played in America?
I ask not because anyone any more truly believes that grand juries serve their traditional (and highly laudable) function of preventing prosecutorial overreach. Long gone are the days (harkening back even before 1215 to Henry II and before him to William the Conqueror) where the honest, earnest, fair-minded citizens of a town would take the time to stand up and block an unjust prosecution against one of their own. I ask instead because of this startling story offered up Saturday by The Charlotte Observer that tells us precisely how warped, how broken, the grand jury system has become:
During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments. That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.
One of those was a voluntary manslaughter indictment against Randall “Wes” Kerrick, the first Charlotte-Mecklenburg police officer charged in connection with an on-duty shooting in more than 30 years. The so-called “true bill” against Kerrick followed a decision by a separate grand jury the week before not to indict him.
The resulting controversy and confusion surrounding those decisions, as well as revelations of the grand jury’s caseload, have raised questions about a highly private judicial process. Two prominent attorneys – and even Mecklenburg’s former top prosecutor – say grand juries now fail to perform their traditional role as a protective wedge between overzealous prosecutors and the public.
The old saw about how a prosecutor could get a jury to indict a ham sandwich now has a kicker—that sandwich can be wrapped and ready to go in less than one minute in North Carolina! This may be law, folks, but it surely isn’t justice. And you don’t need to be a lawyer to understand why. There is no possible way this group of grand jurors, or any group of grand jurors, could carefully consider the evidence before them and reach a reasoned decision in roughly the time it takes to reheat your pizza in a microwave. I mean, you would think it would take 52 seconds just to describe each particular case the grand jury had been empanelled to hear.
One attorney watching these cases closely is Thomas Maher, executive director of North Carolina’s Office of Indigent Defense Services. He doesn’t think these startling figures would track statewide but is still concerned. “I suspect that the workload of the grand juries in Charlotte is significantly greater than the workload in jurisdictions with significantly smaller number of cases to indict, so less than minute per case is most likely not the norm across the state,” he told me Tuesday. “However, even if you increased the amount of time ten-fold, it would be too little to give serious consideration to anything other than an open-and-shut, run-of-the-mill case.”
There is no possible way this group of grand jurors, or any group of grand jurors, could carefully consider the evidence before them and reach a reasoned decision in roughly the time it takes to reheat your pizza.
Maher says even those grand juries that are taking their time to evaluate probale cause aren’t capable of performing their historic role. “Grand jurors hear only a small amount of the evidence in a case, and often only hear it from a law enforcement officer who was involved in the investigation and not from the witnesses themselves, and so have very little basis for really acting as a screen against ill-founded indictments,” he says., “This would be less troubling if the statutorily mandated probable cause hearings at the district court stage actually took place, which would allow the defense to question witnesses and allow a judge to make a more considered assessment of the evidence before the case even went to the grand jury, but these hearings are the exception and not the rule.”
What I also find interesting about this story, apart from the gross misfeasance it suggests, is the reaction it so far has generated in North Carolina, the scene of the crime you could say. On Sunday, reacting to The Observer piece, the Associated Press ran a story titled “North Carolina attorneys criticize volume of grand jury cases”and it was this passage that struck me:
But grand juries are important not because of all the times they indict defendants, but for the few times they don’t. That check forces prosecutors to show restraint, said former federal prosecutor and University of North Carolina law professor Richard Myers. “So if you ask me, I do believe in the institution of grand juries. Just as I believe in the value of a fire extinguisher,” he said.
In North Carolina, attorneys and judges aren’t in the room with the grand jury. Jurors only hear from investigators, and no record is kept of the proceedings. Former Mecklenburg County District Attorney Peter Gilchrist said grand juries may have outlived their usefulness, but they will be hard to eliminate.
“They really are a rubber stamp, but they are a required rubber stamp,” Gilchrist said. “It could be time to replace it. But because so many people don’t understand how it functions, there would be some hue and cry that you were taking away rights from a defendant.”
Got that? A process that is not remotely working the way it was intended to work, that cannot possibly work the way it was intended to work unless the state completely revamps it, nevertheless must remain in place because of a misguided perception that it somehow actually does work well. And so North Carolina will continue with this sham of a process, and citizens there will continue to labor under the false assumption that grand jurors somehow are protecting their rights to be free from wrongful prosecutions, and the state’s judiciary will continue to pretend that this is the way it is supposed to be.
On Monday, I showed the Observer article to a law professor who has extensively studied the work of grand juries. He did not want to be identified, or quoted, but he graciously sent me back an extensive list of potential explanations for the statistics cited in the piece. Maybe the grand jury had prescreened some of these cases. Maybe there had been a mass arrest (as with a protest). Maybe there were many simple drug offenses. Maybe this, maybe that. As I read the litany he had shared, the questions he had posed, it dawned on me that perhaps this expert simply couldn’t wrap his mind around the idea that there was something so profoundly wrong about the process that it could not be rationally explained or justified.
That’s not a roadmap toward a solution. That’s instead a recipe to continue an unacceptable status quo.