The first rule of grand jury is that you don’t talk about grand jury.
Luckily, the first rule doesn’t apply to state grand juries generally, just to specific grand juries. I can’t tell you anything about any of the poor folks currently being judged in their absence by a group of randomly selected residents in secret proceedings led by an agent of the state, but I can at least tell you a little something about the process in general.
As you can probably guess from the first rule, grand jury proceedings are held in secret. In Arizona, it’s a crime to disclose the fact that an indictment has been found or filed before the accused person is in custody or has been served with a summons. It’s also a crime to disclose the nature or substance of any grand jury testimony or any decision, result or other matter attending a grand jury proceeding. Arizona isn’t alone, and it may not even be especially secretive.
Here, everyone tiptoes around the grand jury. Its secrecy leads grown-up lawyers to allude to a “special place” where cases might be. We all know the state is seeking an indictment, but we don’t dare divulge any of the nasty details.
Defense lawyers tell their clients the state is doing something they can’t talk about but that we’ll write a letter explaining everything to the indictment-hungry prosecutor and hope he reads it to some mysterious people in secret. The only solace is that we can tell our clients we’ll get more information when they’re in jail or they receive a summons, but we don’t know which one it’ll be and would be committing a crime if we told them anyway. Comforting, huh?
The whole things strikes me as profoundly unfair. In one of my first appointed cases, I was advisory counsel for an elderly gentleman who filed a number of pro se motions arguing the indictment, which the state obtained against him in secret grand jury proceedings, was fundamentally unfair for that reason and therefore violated due process. The judge and prosecutor were more amused than anything, snickering about how silly he must be to not realize that all grand jury proceedings occur in secret.
I thought my client was onto something. It is fundamentally unfair that the opposing party, the party with all the power in the world and far better access to the courts and everything else in the criminal justice system, gets to go behind a defendant’s back and rubber-stamp the charges.
And what a rubber stamp it is! You simply can’t challenge the sufficiency of the evidence. Even if they indict your client without any evidence on a major element of the charges, you can’t say the presentation was insufficient. You have to frame it under the theory that your client was denied a substantial procedural right.
I remember at one point learning about the history of grand juries in this country. As I understand it, in the beginning, anyone could bring a case before them. It certainly wasn’t some secret group to whom only the state had access. It was a group of ordinary people tasked with deciding if there was enough evidence for the complaining party to proceed with a case. It seems like a great idea, almost democracy at its best. If every case started with a defense lawyer helping to present the full picture to a group of impartial citizens, there’d be a lot fewer cases.
As it currently works, the grand jury is little more an effective way to keep important information away from the defense during the early stages of a case. Grand juries indict almost every person almost every time. People tell me there are instances where they’ve indicted without having been given a single shred of evidence on substantive elements of the charges or without having been told the date and place where it occurred or even the defendant’s name. Is it any surprise that people who only see prosecutors seeking indictments and cops testifying about why to indict tend to do what the prosecutors and cops want them to do?
At some point, grand juries may have served as a check on the state’s ability to bring charges. Now, it’s one of their greatest weapons. It’s a little extra confirmation for my belief that we aren’t really a free, open society at all. It’s a symbol of the state’s incredible power and its ability to turn anything and everything it touches into a weapon against its citizens, even those things intended to protect them.
It’s fitting how it’s evolved and that it’s done in secret, as the first rule of ever-increasing government power and abuse is that you don’t talk about ever-increasing government power and abuse.