The recent leaking of grand jury "evidence" concerning Mayor Barry calls into question the existence of the grand jury system as it functions today in the District of Columbia. Ever since I spent two months as assistant foreman of a D.C. Superior Court grand jury some years ago, I have turned a skeptical eye not only on leaks but also on the resulting indictments themselves -- especially in well-publicized cases tinged by possible political considerations. As a result of my experiences, I now perceive the grand jury system as a legal facade whose hollow procedures are both wasteful and frustrating -- and in fact do little to guarantee or to protect anyone's rights.
I came to the grand jury as would any citizen, reluctant at first but eventually mindful of the words of the judge who lectured us about the significant and historic role the grand jury plays in our legal system. After three months, I emerged with the judge's ideal sadly altered and the uncomfortable feeling of having been misused -- of sitting numb day after day, performing an essentially rubber-stamp function -- of being an unwilling participant in what must be at best an anachronism and at worst a legal hypocrisy.
Every aspect of the system semed geared purposely to engender indifference on the part of the jurors -- their sweltering and uncomfortable surroundings being characteristic of a process that grinds away the jurors' attention, physical stamina, interest and mostly their belief in the purpose of the jury itself. First we felt natural shock and outrage at the disturbing, sometimes violent details we had to hear; but the staggering caseload soon turned us cool and then indifferent.
These and many other unpleasantries and difficulties could have been managed, rationalized or ignored if we believed we were performing a worthwhile service -- simply doing our homely duty as citizens. However, when each juror eventually saw through the charade and perceived that he or she was an expendable member of a powerless group, a sort of creeping anomie took over and transformed an eager, interested juror into an uncaring, uninvolved person. I can still recall, immediately after the evidence had been presented in one particular case, 26 right arms, including mine, beginning to rise (and therefore indicating a "True Bill," or a yes to an indictment request) before the prosecutor had closed the door to exit. Although certain cases did stimulate some discussion and debate, others were decided almost immediately after presentation.
Legal innocents though we were, we quickly became attuned to the sometimes subtle indicators flashed by the U.S. attorney during a presentation. You had to be very dull or asleep to miss these cues. These attorneys, despite their varying styles, easily ingratiated themselves with the jury. In some ways they became ''friends" of the jurors, allowing us to share a sort of temporary on-the-job camaraderie with them. A relationship resembling that of a team developed, with the attorney in the role of coach. Since our opponents in this game were not required to appear and rarely did (their statements to us could be used in a later petit jury trial), we contemplated the fate of mostly disembodied individuals. Sometimes our coaches were adept at bringing these detached names to life by providing off-the-record asides -- usually details of past crimes or upcoming indictments.
As time passed, you felt increasingly that whether or not you performed as a conscientious juror and paid attention, took notes and asked questions mattered hardly at all -- that the state would get what it wanted. This suspicion could be confirmed most forcefully and blatantly. On one occasion we chose not to indict an individual whose indictment was sought by the U.S. Attorney's Office. On learning of our action, the incredulous attorney who had presented the case acted as if we had all gone crazy. His sputtering amazement was truly revealing.
Our new assertiveness was short-lived, however; the case was reintroduced to us, this time by the office's top person, who first railed at us for being so derelict and then put on his most grave face and succeeded in cowing the needed number of jurors into changing their votes. Later I learned that had he not succeeded with us, he could simply have presented his case to a different grand jury -- again and again until the indictment was obtained.
I doubt if any injustices were carried out during our tenure. Many cases required little debate. But what of the principle? Where are the real checks and balances against misuse? The only protection the indicted individual has is the actual petit jury trial by his peers. If the grand jury system operated according to common sense, it would weed out cases where the state had produced insufficient evidence. But it doesn't do this.
I have little or no sympathy with criminals, nor do I think that we should make things any easier for them. Indeed, far too few convicted felons get the sentences their actions merit. But I must say that when I now read of any grand jury indictment, I cannot help suspending my judgment as to the guilt or innocence of the accused -- knowing full well that he has in no real way been convicted of anything. This is how it should be, of course, but how many of us secretly equate an indictment with a conviction?
The grand jury system is purported to be one thing when it is in fact another. The real question at the heart of it all is almost a moral one -- how can a system that uses sham and hypocrisy, although for a good purpose, be of any intrinsic worth or achieve any kind of justice? Is it not the opposite: are we not in danger of slowly eroding our basic values?
There must be many institutional or administrative remedies available. Couldn't a judge or a small group of judges hear the evidence? How about requiring all legal professionals to spend one day or one week a year in similar service? There's another approach that appears less radical and more realistic: keep the citizen-stocked system of today -- but give it real power to dismiss cases.
If our petit jury system, staffed by one's peers, is competent to determine the final fate of the accused, isn't a body of similar makeup competent to determine the adequacy and sufficiency of the evidence -- a lesser responsibility in kind and degree?