A Not So Grand Jury
December 6, 2015 3 Comments
I just completed* Grand Jury service here in DC – 8 weeks of Wednesday through Friday all day. I knew it was going to be unpleasant, but I had no idea how much it would affect my opinion of the nature of the legal system in this country. Sol Wachtler was famously quoted by Tom Wolfe as saying that a good prosecutor could indict a ham sandwich. He was not, and is not, wrong.
My GJ was the one designated to handle the so-called “RIP” cases – that’s “rapid indictment program”, where relatively straightforward cases are brought forward to get an indictment. What they mean by “relatively straightforward” is well summed up by the assistant US attorney (AUSA) as “guns, drugs, and cars”. Probably two thirds of our cases involved some combination of these three elements. We didn’t have a “bingo” with guns, drugs, AND cars, but we had all of the combinations of the two. Drugs were certainly the plurality if not the majority of the cases.
We did have a smaller number of assaults, robberies, sex crimes, and homicides. My experience was bad – but then I reminded myself that there was another jury across the hall that focused on the sex crime cases.
The GJ was comprised of 23 people – about half black and half white, six men, 17 women, with a variety of age ranges (skewed a little older than average due to young people not becoming DC residents). 16 people were required to have a quorum, and for all counts, there had to be 12 votes to indict on each count.
A note on how this works: the Fifth Amendment says, among other things, that “no person shall be held to answer for a capital or other infamous crime, except upon presentment to a grand jury…” In practice, this means that Federal felonies (infamous crimes) require an grand jury to indict, while a Federal misdemeanor does not. DC, by virtue of not being a state, has to strictly follow that rule (and the city is effectively treated as yet another federal district, while the states have a lot more leeway in defining “infamous” more narrowly.
Our statistics (with the caveat that because I had to leave early on Fridays, I missed a few cases):
We had 119 cases as of the time I left.
We had 139 targets of investigation (people who in an actual trial would be called “defendants.”) This is because some of the cases involved multiple defendants (like a drug dealer and the “go between” who facilitates the deal).
Of those, 12 targets were women.
Those 139 people were charged with 337 counts, and all of them had at least one felony (which is why they were going before a GJ), along with occasional misdemeanors.
Of the 337 counts people were charged with, 5 counts were removed by the AUSA before we voted on them. A typical reason was that we were told to vote on a “large capacity ammunition feeding device” charge, but when a cop testified, he said that the capacity of that magazine was 10 (the statutory limit in DC). In addition, we declined to indict on exactly one count out of those 337. Thus, lots of ham sandwiches.
I have a couple of random thoughts, and then a few proposals:
- The criminals arrested for carrying a pistol without a license (CPWL) have never heard of holsters. The sheer number of people who were identified by police via clutching something while running, etc, is really striking.
- Criminals are also really stupid. The big takeaway I’ve gotten here is “never give any information whatsoever to police if you’re in trouble”. Don’t try to explain yourself (“it’s my girlfriends’ PCP”, “I don’t know how the gun got in my purse” etc), because it absolutely IS held against you.
- Our laws are extremely poorly written. Example: Possession of an open container of alcohol (POCA). You may notice that (a)(2) indicates “in a vehicle”. As far as the AUSAs are concerned, this includes the trunk. The implication is that there is in fact no legal way to transport a non-factory-sealed bottle of whiskey from one location to another. The AUSAs were challenged on that specific law several times, and were “strict constructionists” about it – and argued that we had to just “follow the law”.
- Another example: there are synthetic cannabinoids which are listed on the controlled schedule (all of them have horrible chemical names) – an example of a controlled substance is “AB-Fubinaca”. However, drug producers are not idiots, and have made some similar drugs (e.g. “AB-Chminaca”) which is not technically on the schedule list. The AUSAs will charge “attempted distribution of synthetic cannabinoids” if they bust someone and it turns out to be non-controlled. The justification of “attempted distribution” is that the street names used are the same (Scooby, Bizarro, etc).
- The resources used in drug busts are unreal – a few undercover cops (UC) – both buying and watching, an arrest team, jailers, the grand jury, and the court system. The typical drug bust was a buy which was under $40, and most often under $20.
- Another example of a screwy law: Possession of a Firearm During a Crime of Violence (PCOV). This sounds reasonable, right? If you fight with someone and have a gun, it would make sense for there to be a harsher punishment. Except the “or dangerous crime” portion – when you go to the definitions there, it is specifically defined as “possession of a controlled substance with intent to distribute (PWID)”. Every one of the PCOV charges we saw was someone charged with PWID, and the AUSAs take an extreme latitude about chaining interpretations together – hypothetical example: a person is busted with 5 ziplock bags of crack. At his home, there’s more crack, and an unloaded gun. He would be charged with PWID and PCOV, even though he wasn’t carrying the gun outside.
- All of those drug busts were in black areas, and the overwhelming number of people had names which (when correlated with arrest locations) processed as “black”.
- Many of the cops and AUSAs had a surprising ignorance about firearms terminology and function. There were a surprising number of “large clip” comments, and several people didn’t know how to determine the capacity of a magazine.
So here’s my thought:
First, we should legalize all drugs. Yep, all of them. Quit spending all of the time and resources hounding black men for doing this. Take all of the money we aren’t spending on this, and put 10% of it into PSAs of “don’t do this it’ll kill you”, and another 10% into low-cost drug treatment programs. Pocket the other 80%. We can’t effectively stop people from killing themselves if they’re determined to do so, and what we’re doing just ruins their lives in the meantime. (Example: a drug felony means that a DC resident can *never* vote or own a gun). The net effect of these drug laws has been to disenfranchise a tremendous number of black men for their entire lives, without making the streets noticeably safer or reducing the overall drug trade.
Second, we need to make our gun laws make more sense. It’s extremely hard to get a concealed carry permit in DC, and that should be fixed – there’s currently a subjective element to it, and that’s not how permitting laws should be written. The charge of unlawful possession of ammunition (UA) is goofy – the AUSAs interpret ammunition as being per firearm – so if you have two loaded, unregistered guns, you’d get two UA charges. However, the law doesn’t say that – if you have a valid registration, you are allowed to possess ammunition, full stop.
I saw a lot of overcharging targets, and I was a relatively lonely voice in my opinions about this – I look at “probable cause” as being a standard which is higher than “plausible”, and I was not in the majority there. I’ve been called to jury duty eight times since moving to DC, and have been empaneled on five juries (including one GJ). The next time I go in for voir dire, when they ask “can you be impartial”, I’m going to have a real problem answering yes. This system is currently rigged, and needs to be changed before more injustice is done.
* there are two more “recall” days, for us to finish up any leftover work, such as Gaitherizing any outstanding indictments.