At 8:00 am on Tuesday, July 10, 2001, I reported to the Federal Court House on Main Street in downtown Richmond (the letter requesting my presence had arrived months before the appointed day). After passing through the metal detector in the small lobby with the marshal dudes hanging out, badges dangling from jacket pockets, we were sent up to the 3rd floor, where the long and absurdly wide ............... hall has dark half-paneling, is , the way public buildings were in the old days. There is still frosted glass with old-fashioned gold lettering in the doors.
Way down the hall, past a small desk with two more enbadged good old boys amiably chatting, was the Dutch door of the office where grand juror candidates checked in. After this formality, we were shuttled to two small rooms with big central tables where we sat and waited. And waited. Finally, all 31 (?) of us were led down the hall, through a passageway, across the walkway connecting to the annex, around a few corners, down another hall, up and down some stairs, in general ............ through a seeming rabbit warren and finally into a wood-paneled courtroom with a stopped clock on one wall.
We filled the spectator pews in the far back of the room as well as the conventional jury pew along one wall. Eventually we were bidden to rise and in came the presiding judge of our grand jury, The Hon. ........... Lowe. We were asked who had been convicted of a felony or other disqualifications (all things we were supposed to fill out on our mailed-in response sheet, but I suppose it’s best to have one last quality control check). He told us what we were there for and asked who had a valid reason not to serve; VERY few reasons would end up being considered valid.
There was a bailiff (a loutish-looking white youth sitting bored off to one side), the court reporter, and the clerk, or whatever her title was, a small black woman who sat in front of the judge’s dais. At a table right in front of our pews were two Assistant US Attorneys. The clerk put little slips of paper with our names on them in a small metal box and shook it. One by one, she pulled out 23 slips, chomping gum the whole time. As she took each slip out and clipped it to a special clipboard, she called our names and “Juror Number 15,” never just “Number 15” or just our name. As our names were called we were bidden to step forward and form a semi-circle in front of the judge’s bench. When 23 names had been called the judge thanked those who had not been named, told them that even though they were not chosen it was still important to the process that they had showed up so they still contributed to the smooth running of the justice system. After they left the room, the judge had us raise our right hands and gave us the oath of Grand Jurors. Then we sat back down and he read us verbatim the spiel from the handbook (which we had received with our original letters). Because he was reading straight, he used a very mundane inflection and the powerful words fell flat. It would have had much more impact if he had talked to us ex tempore and put in a little feeling. He named a foreperson and a deputy foreperson. It can’t be coincidence that for the foreperson he picked a white male wearing a suit (David M.). The first man he picked for deputy declined and he then selected the one Asian in the group (T. Jao).
The judge was not quite so accommodating, however, during the period when we would supposedly have a chance to voice our concerns over being able to serve. One young woman assured him (and us) that she was the sole conduit for vast amounts of very important information that flowed between certain people in her workplace and there was no one else she could delegate this too and being absent two days a month would be devastating to her organization blah blah blah, in other words, she, like the rest of us, had a job. Judge Lowe was very polite but firm - no chance.
After these preliminaries, we were led back through the rabbit warren and back to the first floor of the courthouse into a small white-painted room quite near the lobby. It had a water fountain, two bathrooms and two ceiling-high windows that looked out on an alley. At the front was a two-chair dais for the foreperson and deputy foreperson. The witness chair was to the right. The court reporter sat in front of the dais............. Directly in front of the dais was a table on which the Assistant US Attorneys placed their paperwork. Each one had his or her own style. Some stood and paced, some slouched in the chair, some leaned forward on the table and cupped their chins. The jurors’ chairs were the old-fashioned big leather kind, straight-backed and with big upholstery tacks.
The demographics of the jury made an interesting statement: ___ white males, ___ white females, 3 black females, 1 Chinese male, zero black males.
The United States Constitution requires that all Federal felonies have to go through a grand jury. These are things like crack, ecstasy, methamphetamine, kiddie porn, counterfeit checks, crimes committed on a military base, etc. (There are Federal misdemeanors but they rarely prosecute them.) Of the 23 people on a federal grand jury two are alternates. The judge urges the alternates to attend as many sessions as possible since some of the cases go on for months and if a juror misses out on testimony it puts him or her at a distinct disadvantage when it comes time to make a sound decision. A quorum is 16. Any time the number of jurors in the room falls below that, even for a moment, the proceedings must stop. Fortunately, this never happened to us.
Only three, possibly four, people are allowed in the grand jury room other than the jurors during testimony: one or two Assistant US Attorneys, the court reporter and the witness. In the afternoons when someone came in to refill the ice and drinks the room fell totally silent until the door closed behind her. Because of this rule, witnesses are not allowed to have their attorney in the room. The witness is therefore allowed to go outside and talk to his or her attorney in the hall before answering a question (this happened extremely rarely in practice). The no-outsiders rule also applies to law enforcement. A marshal can’t be in the room while a prisoner is testifying, so they put handcuffs on them just before they brought them in the room and took them off when they get back outside. These are the handcuffs with no chain – the wrists are firmly together; must be extremely uncomfortable. And the vertical black-and-white stripes! I couldn't believe the Federal system actually uses them - I thought they were only in Bugs Bunny cartoons.
The procedure goes like this: An Assistant US Attorney comes in and describes the indictment that he or she wants us to approve. Then a witness is brought in (we cannot approve an indictment just on the basis of what the Assistant US Attorney says – there has to be at least one witness). It can be an ordinary citizen with pertinent knowledge, it can be a prisoner or it can be a law enforcement officer. We heard from FBI, DEA, IRS and local police. One interesting point about the grand jury is that hearsay testimony is perfectly ok (this is because the grand jury is not establishing guilt or innocence, we’re simply determining whether there is “probable cause to believe that a crime has been committed.”) Often the federal agent or police officer testifying has no direct involvement in the case; they have spoken to the people who have firsthand knowledge and simply relate what they’ve been told. It’s often more efficient for someone else to learn about the case and present the testimony than to have the original officers take time off to come to the courthouse. If the case goes to trial, of course, then those officers would have to testify in person. And the Federal agents are just the way you see them on TV. Even-tempered and cool as a cucumber. These guys are totally rational and relentless. I would not want to cross one.
The testimony consists entirely of the Assistant US Attorney asking questions and having the witness answer. There are no expert witnesses, no lawyers yelling "Objection". This is where the federal system differs wildly from the that of the states, at least in New York as depicted on TV. If Dick Wolf is to be believed, the New York state grand jury allows the witness to have his/her attorney present. Another curious fact about the system is that the (allegedly) guilty party is NEVER a witness. In fact, most of the time he probably doesn't even know he's getting ready to be indicted (and yes, it was always a he - there were plenty of female witnesses but not perpetrators - the women get in trouble by doing dumb things their husbands/boyfriends ask).
After the testimony is finished the jurors can ask the witness as many questions as we want. Often the Assistant US Attorneys will ask that they be allowed to rephrase the question, but they make it clear that they are not trying to discourage us from asking. They have obviously had it drilled into them that they are not to show impatience with our questioning. I once interrupted AUSA Bob Trono’s questioning of a guy in a fraud case to clarify something and he gave me kind of a dirty look, but what could he say? What’s really funny is when they ask a question that they obviously haven’t prepped the witness for. They’re expecting a resounding yes answer, and all they get is this weird silence followed by an I Don’t Know.
We had an endless supply of spiral steno pads to take notes on. This is especially important for the ongoing investigations that will stretch out for months. After the question and answer session was over, the Assistant US Attorney, the court reporter and the witness must leave the room. Then we deliberated amongst ourselves as to whether there was a “True Bill of Indictment” or “Not a True Bill of Indictment.” Often we wanted more clarification, either of the fine points of the law or of the testimony. If this was the case, we called all three back into the room and asked more questions 'til we were satisfied. Then they left again and we voted. It takes 12 (which is just over half of 23) to declare the indictment to be a True Bill. The foreperson writes the number of votes on the indictment (but not any indication of who voted which way), signs it and we called the Assistant US Attorney back into the room and gave him or her the indictment. He or she then took it to the Federal Magistrate to have it go forward (or not; but rarely not).
There are 12-month and 18-month grand juries. I was on an 18-month one so we wrapped up in December 2002. We met the first Tuesday of every month for at least two days. Some months it could stretch to three or even four days. Most of the cases we got were ones where the Assistant US Attorney wants a decision that day. There were just one or two witnesses and we voted yea or nay then and there. But we also had some continuing investigations that would go on and on. Every month we may hear a one or two witnesses while they gradually build the case. All the investigations are considered “our” investigations. In theory, we the grand jury are conducting them – the Assistant US Attorneys are just doing the leg work for us.
The US Attorney for the Eastern District of Virginia, Paul J. McNulty, never showed up to thank us for serving but the head of the Prosecutorial Division, James B. Comey, did, once at the beginning of our term and once at the end. He was very tall and soft-spoken and exuded quiet confidence. We were all very impressed with him and had great expectations for him in the future. After our term ended, he was named US Attorney for the Southern District of New York to be the main prosecutor of crimes associated with 9/11, an extremely prominent job.
I had always thought that maybe the grand jury system was just a rubber stamp, but now that I have been there I understand the benefit. Because we are not lawyers, we ask the dumbest imaginable questions. This forces the prosecutors to dot every I and cross every T before they take a case to trial. Also, it really does assure that the power of the prosecutor isn’t just being used for a vendetta or for political purposes. It would be very hard to get away with that with a mixed bag of 23 ordinary citizens in the room, some of whom resent being taken away from work and can ask some pretty picky questions if it sounds like the prosecutor has brought in a shaky case.
There is a total vow of secrecy around the proceedings for the jurors. The witnesses can walk out of the building and straight to the microphones if they want (which we’ve seen on TV with Hillary Clinton, et al.), but the jurors cannot ever divulge any of the testimony or deliberations (one previous grand juror made the forehead-smacking mistake of telling her boyfriend that his name had came up in testimony – she went on to serve a five year sentence). One, if the person under investigation gets the news that an indictment is coming, he might run. Two, if we get to the end and decide not to indict the person and it gets out that he was the target of a Federal investigation, his reputation could be ruined. Thus, I can never talk about the things we heard and talked about in the room. That doesn't apply to what got printed in the newspaper, obviously.
That’s about it. A very interesting experience, and one that gave me faith in our system.
There sure is a lot of crack out there. And I never thought I would live to see a large manila envelope with the words CHILD PORNOGRAPHY written on it.