Just last week, I completed a two week term on a grand jury, in Brooklyn, New York, County of Kings. In light of the Eric Garner case, in which the Staten Island grand jury failed to indict David Pantaleo, here is what I can tell you about the process:
New York grand juries consist of 23 members. To vote on a case, one has to be present for every presentation of evidence for that case, which can spread over days or weeks, with cases heard in between. At the time of the vote at least 16 members must be present who have heard all of the evidence. To indict, 12 of the 23 (or "quorum" of at least 16) members must vote for a "True Bill." To dismiss, 12 of the 23 (or at least 16) members must vote for "No True Bill." If 12 do not vote either way, the jury is said to take no action, and more evidence can be presented if the prosecution decides to do so.
There is no judge in a New York State grand jury proceeding, though judges will review the transcripts. There is an Assistant District Attorney (ADA) or two, the jury, and the evidence, either entered by the ADA announcing that the 8 1/2 by 11 piece of paper in their hand is evidence, usually of a drug or ballistic report, or from the mouths of witnesses. There is no defense attorney, unless the defendant is actually in the room, testifying (see below). There is no cross-examination of any evidence.
It is by definition a one-sided hearing. The exception is if a defendant decides to testify on his or her own behalf.
In New York, witnesses have immunity. Defendants can testify on their own behalf, but must first waive immunity and state for the record that they understand that what they say can be used against them. Their lawyer is allowed in the room but cannot say anything. If the defendant wishes to consult with his or her lawyer before answering a particular question, they leave the room to discuss and then come back to answer it. The lawyer cannot prompt this. The defendant has to ask for this on his or her own.
The defendant first makes a statement, which is uninterrupted by the ADA unless it wanders off topic. Then the ADA gets to grill the defendant. There is no cross-examination.
The jury is instructed that defendants are not obligated to testify, and not to hold the fact that any defendant chooses not to do so as any indication of guilt.
In Brooklyn, the ADA's joke about how the caseload is heavier in Brooklyn than it is in Staten Island, a more prosperous, more conservative, more suburban borough of the City of New York.
Grand Jurors may not discuss anything that occurs in the grand jury room with anyone outside of the grand jury room. Section 190.25.4.(a):
"Grand jury proceedings are secret, and no grand juror, or other person... may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding."
New York Juries cannot even be provided with written evidence or material. There are no handouts with written instructions or charges. All instruction and charges specific to any case are read to the jury by the ADA's, from a script. All notes taken by jurists must be written in a paper notebook provided by the State and must be handed back at the end of the day.
From the Grand Juror's Handbook:
"To formally charge an accused person with a crime, 12 grand jurors who heard all the essential and critical evidence and also the legal instructions must agree that there is legally sufficient evidence and reasonable cause to believe that the accused person committed a crime."
That's the bar: "legally sufficient evidence and reasonable cause to believe that the accused person committed a crime."
As in the Darren Wilson case, the David Pantaleo case took months, where it usually just takes days. Once again, it is possible that the prosecutors attempted to try the case while acting as defense attorneys. But we won't know. Because we are not allowed to know.
The officer took an action that is outlawed by the police department. It resulted in death.
The Coroner called it "homicide."
Somehow, this grand jury decided to vote to dismiss on every charge. We will never know why.
At least this officer shows some remorse.
At least New York is not Ferguson.
Still, this seems very, very, Plessy....
8:03 PM PT: Wow. Rec list. Thanks!
