Many years ago, I was called to grand jury duty. In Hennepin County, Minnesota, grand jury duty is different in that you don't hear just one case. You are "on call" over a period of months. That's because the grand jury only hears certain kinds of cases--serious ones, mainly murder. They don't come up every day, so you go about your life, and then, when needed, your phone rings. You hear the case, vote, go back to your life, wait for the next call.
Grand juries hear only serious cases because, in theory, they function as a check on the prosecutor's power. It's no light matter to be charged with having committed a homicide. Consequently, the D.A. can't charge anyone he wants. There has to be a group of citizens--the grand jury--who hear the evidence and decide whether or not it's sufficient to go forward with a trial. So in grand jury proceedings the standard of proof is lower than in criminal trials. A majority of grand jurors have to decide that there is "probable cause" for believing that the subject of the inquiry committed a crime. If they think there is probable cause, an indictment issues, and, in the ensuing criminal trial, a jury decides whether or not the defendant is guilty "beyond a reasonable doubt." Moreover, the verdict rendered by the jurors in the criminal trial has to be unanimous.
If, on the other hand, a majority of grand jurors think the evidence against the suspect is unpersuasive, they can vote not to indict, and then, no matter the opinions or whims of the prosecutor, the person under suspicion goes free.
I say it works this way "in theory" because, at least in the cases I heard, the prosecution always got what it wanted. The recurring pattern went like this. First witness was the medical examiner. He showed pictures of a corpse he had examined and, under questioning from the prosecutor, testified that the cause of death was homicide--usually, a gun shot wound (or wounds). Next witness was a homicide investigator who, again in answering a series of questions put to him by the prosecutor, testified about what facts led the investigation to the suspect in the case. This evidence was usually of two kinds: the suspect had a plausible motive and could be linked to the weapon that had been used to perform the crime. And that was frequently all we got. When the prosecutor was done with the witness, individual grand jurors could ask questions, but there rarely were any. This was not "old hat" to us and, speaking for myself, it was hard to make my mind work in the atmosphere of formal solemnity that prevailed in the room. There were ugly pictures of dead people who had been killed. It was plain who the authorities thought had done it. We voted to indict, and I think that was the right thing to do.
There was one exception to this recurring pattern. That case concerned a police officer who had shot and killed someone. I'd like to give the details, as well as I can remember them, but I think that might be against the law. I recall my first opinion being that the cop probably hadn't committed a crime. As the case wore on, however, the general tenor of the proceedings began to annoy me. There was no prosecutorial zeal. In all the other cases we'd heard, it was clear that the prosecutor thought the evidence against the suspect was weighty and that an indictment was warranted. In this case, the prosecutor communicated the opposite message. The suspect had not testified in any of the other cases. I don't think it would have been in his interest to testify, for he then would have had to answer questions put to him by an aggressive prosecutor, and in the event he was indicted everything he said could be evidence at the criminal trial. In this case, however, the cop was the second witness, right after the medical examiner. I remember he wore his dressiest navy blue uniform. If he had worried about facing tough questions from a skeptical prosecutor, he had wasted his time, but his presence there suggested to me he knew he didn't have to worry about that. His testimony seemed to me rehearsed, palpably memorized, and it was as if the prosecutor had been at the rehearsal, too. Here's the questions, here's the answers. Say this. Say it again. Again. One continuous, exculpatory narrative elicited by the questions of the "prosecutor."
The last witness was an investigator. Something she said reminded me of something the cop had said that hadn't made much of an impression on me when he'd said it. But it didn't seem to me that the two things together could both be true, and that if the investigator was right, there was a significant problem with the cop's story. The prosecutor either didn't pick up on this or let it pass, so I asked the investigator about it. All I remember of the answer is that it was unsatisfactory, and that the prosecutor remained silent. Later, I kicked myself for not pursuing the point, or for not thinking of a way to put the question that would have made it harder to dodge. I was too chickenshit to take over for the incurious lawyer.
What bothered me was my strong sense that there was no effort on the part of the government lawyer to reveal what happened so that the grand jurors could render a judgment about it. Instead, there was an effort to keep covered the facts of the case least flattering to the cop. Grand juries are supposed to be a check on the power of the government's lawyer. Actually, the government's lawyer leads the grand jury to the conclusion he prefers. If he wants an indictment, he gets it. If he doesn't want an indictment, he gets that, too.
When the subject of the inquiry is a cop, he doesn't want an indictment. So there isn't one.
