The Not So Grand Jury: My Experience

Ellin Jimmerson —

justiceI recently served two weeks on Madison County, Alabama’s grand jury. For those who may not know, the grand jury is the legal agency which decides whether there is “probable cause” to indict. That means it is the grand jury which decides whether someone arrested for various criminal offenses, including misdemeanors and felonies, will face a jury trial.

Wikipedia offers the following information:

A grand jury is a legal body that is empowered to conduct official proceedings to investigate potential criminal conduct and to determine whether criminal charges should be brought. A grand jury may compel the production of documents and may compel the sworn testimony of witnesses to appear before it. A grand jury is separate from the courts, which do not preside over its functioning.

The experience was deeply disturbing to me. Using the Wikipedia article as a reference point, I can say without reservation that “investigating” had little to do with my grand jury experience. Nor was I ever under the impression I could compel the production of documents or appearances of witnesses.

During the two weeks, we jurors actually deliberated over the course of only about seven days. During that time, we made decisions about whether to indict on somewhere between 500 and 600 cases. Those cases included something like 1,000 charges because many cases involved more than one charge. We were not allowed to keep our charges list nor our notes which is why I cannot be more specific about those numbers. That information was destined for the shredder.

The first afternoon included an introduction to illegal drugs, illegal drug production, illegal drug paraphernalia, and what are called “precursors” which refers to such things as Sudafed, glass tubes, spoons, and others things used in the production of meth. The officer passed around baggies of white power, rocks, and marijuana of various types.

The reason for this became clear as the days progressed: the majority, although not the preponderance, of the cases had to do with the production, trafficking, or possession of illegal drugs.

I had the impression, too, whether correctly or incorrectly that there was a subtext: illegal drugs are ubiquitous and dangerous and so are the people associated with them. There were no other show and tells: no introduction to knives or guns, for example, although weapons charges were among those we considered.

The officers who often appeared as witnesses relayed that many of the drug charges began with officers pulling drivers over for traffic violations — failing to use their turn signal, driving with their bright lights on, changing lanes improperly. This often would lead to the officer’s claim that he or she then smelled marijuana. That led to inspections. When no drugs could be detected, the canine units were brought in.

There was one instance in which the officer said he could not find any drugs on one particular defendant nor could he find drugs in her car. However, he said, he saw her take a pill as she was standing outside the car and throw it into the car. He said he never was able to locate the pill, but her car was a mess which, he felt, explained why he could not find it.

We were indicting, in many cases, people who were found to be in possession of a single pill without having a prescription for it. We indicted for possession of a single tablet of Xanax, Adderall, or Hydrocodone, for example — all of which at one time or another I have had in my medicine cabinet. I have used these medications, to be sure, with a prescription, but I did have them and used them.

Disproportionately, it seemed to me, these traffic stops, according to the testimonies of the officers, were on Huntsville’s poorer and predominantly African American north side. One of my fellow grand jurors was black and a detective. I asked him, during the second week, “is what we’re seeing here cases of ‘driving while black’?” He laughed and gave a noncommittal answer — saying neither “yes” nor “no”. “Driving while poor?” I asked. He shrugged.

There was only one other African American juror. All appeared to be middle class. There were no tell-tale signs of chronic poverty such as bad teeth. This was of interest to me because it seemed to me that the grand jury did not constitute a jury of the peers of most of the people who had been arrested and whom we were indicting.

The few arrests in the southeast, where I live, were arrests at a certain notorious motel where drugs are often trafficked and at big-box stores where shoplifting was a problem as it was at Parkway Place mall and at other big-box stores around town.

It also seemed to me that the grand jurors were more lenient or more understanding of those with whom they could identify. For example, the jury did not want to indict a man who had shot a neighbor in the stomach after provoking him then shooting around him in the air when the man came onto his property. When I protested that this met the test of “probable cause” in the intention to commit bodily harm, I was met with protests of “how would you feel if you were in his position”?

One of the cases we heard was an exceptionally complicated assault case involving a transgender person. Sometime during the alleged assault a man died although not because of the assault. This was according to the coroner’s report.

The lawyer who presented the details of the case said that the family wanted the person charged to pay some price — meaning a jail term. I felt that conveying that information was inappropriate since it is not the family’s day in court, not the family facing indictment. I believe this is a good legal principle. I said as much to the DA six years ago when the man who killed my daughter and her boyfriend was coming to trial for murder. While suggesting to the other members of the grand jury that I did not think the family’s wishes should be taken into consideration, I also pointed out that the person had been in jail already for seven months and with other prisoners who did not conform to the alleged assailant’s gender identity. I could not imagine that the assault, in this particular case, could ever result in more than seven months.

But the family wanted to see us “do something”. So the jury voted to indict. After voting, one of the members of the grand jury asked the attorney, “Where is it (the transgender person) now?”

After the first afternoon’s deliberations, it became very clear to me and others that we were, in essence, “rubber stamping”, as another juror put it, previously made decisions on the part of the District Attorney’s [DA’s] office.

It also became abundantly clear that we would never understand what was going on in far too many cases. I began to listen out for these words: “confession” and “video”. If I heard those 2 words, I raised my hand to indict. One reason is that it all went extremely fast as you can imagine with 550 cases or so in seven days. There were times I did not vote because I had not been able to locate the case on my case sheet to track the charges and the testimony was over by the time I found it. Another reason is that the testimony often was jumbled. In many cases, the officer or other witness had not reviewed the details in the months or years that had transpired between the arrest and his or her appearance before the grand jury.

There was one case where the witness, who was well-dressed and articulate, gave a long, detailed, well-organized testimony with names. After looking at the names of three people being charged on our case sheet, one alert juror asked her to tell us how they fit into the case. After naming each one, she said she did not know them. We were taken aback as was the DA. These were the only people named in the case. We never understood what happened there. Right witness, wrong case? We obviously voted not to indict.

In other instance, this same alert juror asked the officer to explain to us again what tied the defendant to the case? The officer seemed embarrassed and admitted he had not been the arresting officer and was picking up a random case. As there seemed to be nothing in the case to tie the charge to the defendant, we voted not to indict.

Out of the 550 or so cases, we “true billed” or voted to indict in about 500 cases. There were only one or two instances where we did not deliver what the DA expected. Once, the DA came back to us and told us we had made the wrong decision. The DA outlined for us why we should have true billed the charge. We re-considered and eventually true billed it. The other “no bills” or votes not to indict for the most part came at the instruction of the DA. These were for lesser charges in a case with multiple charges. The DA did not want the defendant to have lesser charges to which he or she could plead guilty.

The DA or testifying officer told us on many occasions that the defendant had “priors” or prior arrests or convictions. Although I think that might useful information in some situations, I did not think that should be taken into consideration when voting whether to indict on a new case. We supposedly were looking for “probable cause” in these particular cases not deciding whether the defendant was of good moral character.

Often, I and others had to ask the officers to slow down or speak up. Once when I asked an officer to slow down, he gave me an arresting officer’s intimidating glare which he held for a good five seconds. I suppose he had forgotten that I was not a good candidate for intimidation.

During the second week, we were given what was called an opportunity to “inspect” the Madison County jail and the juvenile detention home. This inspection, one juror quipped, amounted to a tour of North Korea given by a North Korean official — it was designed to let us see what the DA’s office and the Sheriff wanted us to see and nothing else.

The visit was carefully planned. We ate lunch with several wardens and Sheriff Dorning. I asked one of the jailers whether this was the same lunch the inmates were having. The answer was “no”. After asking, I was told that the budget for each prisoner’s food is $4.00 a day. I asked whether the inmates ever got to go outside. The answer was “yes” and was told the routine.

On a tour of the facility, they took us to the outside area. It was a small concrete room, with walls about 20′ high (I’m not good with estimations of this nature) and a concrete floor. At the very top of the walls, there were a number of windows through which you could glimpse the sky. There was an open roof covered with a mesh wire top. I was not under the impression I was outside despite the fact that I could feel a breeze just as I am not under the impression that I am outside as I write this although there are three windows in my office. This is the area, we were told, where the inmates could jog if they wanted. Again, not being good with these estimates, I cannot suggest how big the room was, but I can say that jogging in there would have been next to impossible.

We never interacted with the prisoners. We were shown empty cells which housed eight to a cell with one open toilet. We were shown where the prisoners ate. The only prisoners we saw were those few who were being checked in or out and were in a waiting room.

One of the wardens was a tiny woman. When asked if she was afraid of the prisoners, she said “no”. She said that she helped raise some of the prisoners. When I asked what she meant, she said some of the prisoners had never had anyone tell them what was appropriate or inappropriate behavior. She said some of the prisoners kept in touch with her after leaving the jail.

I asked Sheriff Dorning a version of a question I had asked many times of people I have interviewed. “If you could change one thing to make it such that there was no need to lock up 700 people a day in Madison County, what would you change?” His answer was, “Bring back prayer in schools.”

The detention home for juveniles gave me a somewhat better feeling. I had the impression that the wardens cared about the kids. To be sure, it was a jail. Each child was locked in his or her room at night behind a metal door. There was a small window in each room.

Yet, there was a school room with no more than twenty desks. There was plenty of food and safety. There was a much bigger gym than the “outdoor” space at the County jail where the kids were encouraged to play and work off steam. There were encouraging posters around with ideas on how to get along socially. We were treated to cookies and Kool-Aid.

There was a school nurse who had an office. The warden said that every possible ailment and disease had been diagnosed and, as far as possible, treated. Almost all the kids needed dental work. But, the nurse also had diagnosed or been part of diagnosing several types of cancer, lupus, and HIV / AIDS. Once they left, their treatments often stopped.

Most of the kids were from about 12 to about 16 years old. There had been a few as young as seven.

The children were only allowed visits from their parents and grandparents. When asked why they could not have siblings, the answer was that too often siblings would bring them marijuana. A few parents had been known to bring it to them.

I asked the warden whether any of the kids ever expressed a desire not to leave. He said occasionally that had happened, but not often. He said that if they allowed marijuana in the detention facility, there would be many who would rather stay indefinitely than leave.

I am glad I had the opportunity to serve on the grand jury. It made me feel good to do my civic duty. At the same time, however, I felt I had been complicit in America’s unjust mass incarceration system. I wondered who the primary beneficiaries of our indictments were. As an ordained Baptist minister, I believe I have some obligation to change the system if only by helping others understand what little I have learned of it through this experience.

Originally published on March 29, 2016 at Ellin Jimmerson’s web site.

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