Join the Cleveland Scene Press Club. Because No News is Bad News.

Wednesday, November 18, 2020

America's Grand Jury System Isn't Built for Justice. We Know, We Served On One

Posted By on Wed, Nov 18, 2020 at 11:05 AM

click to enlarge CUYAHOGA COUNTY JUSTICE CENTER AND JAIL. PHOTO BY TIM EVANSON/FLICKRCC
  • Cuyahoga County Justice Center and Jail. Photo by Tim Evanson/FlickrCC

The recent release of tape recordings from the Breonna Taylor Grand Jury and public statements by three of the anonymous Grand Jury members have offered America a rare look into an opaque system. The tapes and the public statements are unique in that they concern a case of nationwide interest and a police shooting. In other ways, however, they illuminate issues common throughout the process as a whole, in regular cases heard across the country every day by citizens called-up through the jury pool.

From what America heard and read about Breonna Taylor’s case, it’s painfully obvious that the Grand Jury played a subservient role to the will of the prosecutors. Where Kentucky Attorney General David Cameron deflected responsibility for the unpopular outcome to the Grand Jury, the members themselves told quite a different story.



Our country is seeing renewed energy behind efforts to reform our criminal justice system. Increased knowledge and awareness of the problems inherent in the Grand Jury process are critical in this examination. Grand Jury reform should be part of criminal justice reform. Like all the other pieces of this giant machine, Grand Juries too often are tools for injustice.

The general public knows very little of the Grand Jury process, except that it is controlled by prosecutors under a shroud of secrecy. That’s a key part of the problem.

After four months of service on a Cuyahoga County Grand Jury, during which time we heard more than a thousand cases, we want to help lift that shroud now, sharing what the public should know as conversations about reform continue.

***

The three of us first met in May 2019. Two of us came up for selection through the regular jury pool. One of us was appointed by a Common Pleas judge to serve as foreperson (this is a common practice). Much like regular (petit) jury selection, the Grand Jury version is a bewildering process that only makes sense the further you get into it.

After being selected, we were sworn in and took an oath to keep proceedings secret — which is, ostensibly, to protect the privacy of citizens who are being accused of crimes and also for the safety of the Grand Jurors themselves. We received a couple of days of orientation, during which we met the two prosecutors assigned to our Grand Jury. The training is wholly designed by and coordinated by the prosecutors. Some aspects of training were helpful; some aspects seemed a waste of time; and no aspects came from a defense perspective. Specialized instruction – such as the dynamics of domestic violence, the use of confidential informants, or the difference in the various murder charges – was extremely beneficial. Touring the casino and the morgue felt like public relations stunts. Other seemingly vital information, such as the intricacies of Ohio’s gun laws, was never detailed for us, despite repeated requests.

It is important to understand some context upfront. In Cuyahoga County, Grand Jury is a four-month assignment of two full business days per week. (We could write pages about how the structure fundamentally disallows this cohort from truly being a jury of one’s peers for many possible defendants.) There are three Grand Juries serving at a time, usually on different days. Each Grand Jury includes 14 members, all of whom hear every case, and 9 of whom (the first 9 chosen from the pool based on their lottery number) deliberate and vote on the charges.

Each Grand Jury is assigned a pair of prosecutors who present the vast majority of the cases. (Some cases have a special prosecutor assigned due to the severity of charges or the domain/intricacies of the cases.) In the room with the Grand Jury and the prosecutor is a court stenographer.

A time-intensive endeavor, the sheer volume of cases would probably shock regular citizens. With approximately 50 cases per day, and three Grand Juries each serving two days a week, roughly 300 possible felony cases enter the system per week. In four months of service, our particular Grand Jury heard more than 1,000 cases. That’s an average of 9 minutes per case. Nine minutes to hear, deliberate, and vote on each one.

***

There are some legal standards that are important to know, too. The decision to indict is based on the standard of probable cause. Did a crime probably happen? Is it more likely than not that the person accused is the person who committed that crime? We were often given the guidance that if there’s a 51% chance on both factors, then we must indict and trust that the subsequent jury (the trial jury) would comb through the evidence more deeply to get to a verdict that meets the standard of beyond a reasonable doubt.

In other words, the Grand Jury is the beginning of the process, in theory. It’s the first step, the introduction of the case into the system, where a defense would follow and further evidence would be introduced that might not have been available to us. Unanswered questions would be addressed at trial.

What we didn’t know, because it was omitted in our training, is that over 95% of indicted cases in Cuyahoga County never go to trial. There is no further step.The Grand Jury, essentially and unknowingly, acts as the case's only jury.

We had to discover that later, on our own. Most defendants plea bargain. In anticipation of this, the prosecutorial process includes the stacking of charges, which is basically a chess game tactic. An individual is charged and indicted with a laundry list of charges so the plea bargaining process has more room for negotiation. The Grand Jury, in essence, is there to create prosecutorial leverage in those negotiations.

When we talked with community leaders last summer, we learned about the psychology of coming to the table with charges stacked against you. Attorneys explain all of the charges and the potential maximum sentences. The total number of years is daunting. Many defendants plea out because they worry about their odds of success at trial. Many plea because they are being held in Cuyahoga County Jail, cannot afford bail, and simply want to receive their sentence and go home or go to prison. Many of these people are innocent. Research has shown people who are not guilty actually plead guilty at a significant frequency — whether because of inadequate legal representation, personal issues, or because the overwhelming prospect of facing a jury and a maximum sentence is a gamble not worth the risk.

Knowing what we know now, we’re left feeling devastated that we unwittingly helped to stack charges to create plea bargain leverage.

***

During their deliberations, Grand Juries and Trial Juries look closely at the definitions of charges and compare these definitions with the evidence they have received. Trial Juries receive definitions of charges from and bring questions directly to the judge — an independent, neutral arbiter. Grand Juries, meanwhile, receive definitions from and bring questions to the prosecutors — who are actually a party to the case (i.e. the accusers).

Jurors who have been trained by prosecutors, oriented to cases and processes by prosecutors, and whose workloads, seating arrangements, and bathroom/lunch breaks are governed by prosecutors — well, it is no surprise they end up deferring to prosecutors. It takes a very bold juror to resist the pressure to conform in this group context. It takes profound assertiveness to look up the Ohio Revised Code (ORC) definitions (on one’s phone or in the 5-inch thick law book that sits on the prosecutor’s table). And it takes an incredible amount of wherewithal to be the voice(s) that slow the pace of churning-out the hefty indictment docket. The expectation is to indict. There is one-sided guidance to indict. There is pressure to indict.

A much healthier structure and organizational culture is required for a Grand Jury to be truly empowered to wrestle with and apply the law in every case. Some cases are simpler to decide. The evidence and charges are clear. But many cases per day bring uncertainty. Relying on the idea that a Trial Jury will get more time to look closely, Grand Jurors can easily make peace with the 51% certainty and indict someone without much evidence.

We wonder whether members of our Grand Jury cohort would have voted the same way had they been taught that over 95% of these cases would never see a Trial Jury.

***

Compounding this problem – the Grand Jury acting as a de facto Trial Jury by way of providing prosecutorial leverage based on the 51% framework in cases that largely never actually go to trial – is that Grand Juries see little of the evidence that would be presented to a Trial Jury. The prosecution is not required to present all the evidence it has, even exculpatory evidence that would shed doubt on the charges.

To understand how evidence is presented requires an understanding of law enforcement roles. There are specialty units like financial crimes, sex crimes, child abuse, the gang unit, homicide, etc. where cases are presented by officers and detectives who work the cases hands-on. These cases have been built over time and are presented with ample evidence. Those presenting are extremely familiar with the case and are thus able to answer the jurors’ questions. That is not the case for regular patrol officers.

Patrol officers rarely present their own cases to Grand Juries. There is a role within police departments called Grand Jury Liaison. This role entails one officer presenting several cases from their department to the Grand Jury. While there is an admitted element of efficiency to this grouping of cases and one skilled officer presenting in a way familiar to the Grand Jury, this means that cases are presented by proxy. The liaison reads the police report and other evidence to the Grand Jury (occasionally we would get a printed document to review, but only for unique cases — otherwise it’s all oral presentation). If there is a question that the file cannot answer, the liaison might come back on another day after seeking clarification. During our four months of service, there were times when jurors requested more evidence. Occasionally this was honored. More often, it was not. In some cases, our request for more information changed everything — leading to true clarity and a just indictment. In other cases, we did not get much more and were tasked with deciding based on too-little information.

In that regard, cases of resisting, refusing, or assaulting a patrol officer were particularly concerning. In a city under a Consent Decree due to excessive use of force, we wondered why a self-report by an officer was sufficient evidence for allegations that involve a conflict between citizen and officer.

Of all the thousand-plus cases we heard that summer, we saw body-cam footage exactly once. And we saw zero body-cam footage on cases of resisting, refusing, or assaulting law enforcement. Cellphone footage from incidents around the country has demonstrated that an officer's account of a citizen resisting arrest is not always what actually happened. Cuyahoga County is no exception.

What was initially discomfort over this issue in the aftermath of our service became outrage in June 2020, when we read about Kenta Settles, a mentally ill Garfield Heights man who was wrongfully indicted and detained for more than four months in the Cuyahoga County Jail on charges of felonious assault on a peace officer and obstructing official business. The Grand Jury that heard Mr. Settles’ case was not shown the body cam footage from the incident and voted to indict based on the prosecutor's presentation. Eventually, when body-cam footage was acquired by Mr. Settles' lawyer, the video showed officers beating, tasing, and mocking Mr. Settles. County Prosecutor Michael O’Malley dropped the charges days after the body-cam video was made public. Mr. Settles spent four months in jail because that video was not shown to the Grand Jury before they decided whether to indict or not.

That case demonstrated exactly why the Grand Jury’s focus should not be on the number of cases completed; the focus should be due process. Grand Jurors should see body-cam and dash-cam evidence for all charges that involve a conflict between a citizen and law enforcement (e.g. resisting arrest, attempting to flee, assaulting an officer, etc.). Indicting people for these charges when the sole evidence is law enforcement self-reporting — this is not justice.

Likewise, camera footage should be required for any felony allegation that is based on consent/cause to search a vehicle. These vehicle searches typically begin with a traffic stop, and as we have seen in recent articles detailing statistics from our own county (University Circle; Bratenahl), it is far too common for vehicles driven or occupied by minorities to be stopped for a small traffic infraction that becomes a felony charge — because officers saw something dark under the seat, there were furtive movements, or a smell of fresh marijuana. We believe that, without a requirement of video evidence of consent or cause to search, there is room for law enforcement to coerce citizens into consenting to search. As a society, we are obligated to look at the overt racism and abuse of power that is evident in these all-too-frequent cases.

***

There is a mechanism in place for Grand Juries to serve as an overall check and balance to the system, in theory, as the process rolls onward.

The foreperson of each Grand Jury is required to write a report at the end of jury service. We decided to approach this report collaboratively, as Foreperson, Deputy Foreperson, and Assistant Deputy Foreperson. We also decided to survey our jury so we could include their words in our report. Assuming that the Court and the Prosecutor’s Office would want to improve the system, we detailed feedback about how we were trained — about laws that need legislative attention, about law enforcement and racism.

In the months that followed the filing of our report, we did not hear back from the Administrative Judge nor the Prosecutor’s Office. This was troubling because the report detailed not only suggestions on a macro level (on the topics covered thus far), but on a micro level, i.e. how Cuyahoga County specifically could better equip future Grand Juries with training and how county leadership could specifically make the process safer and less stressful for citizens who are called to serve. The lack of response was even more upsetting when we dug deeper, after reviewing over fifty other Cuyahoga County Grand Jury reports. In the 18 years of reports we have thus far reviewed, there are repeated observations, suggestions, and concerns, lodged time and time again with little to no resulting changes in Grand Jury operations. (Many of the reports are far less substantive, resembling thank-you notes and applauding staff.)

In our research, we found a period in the early 2000s where Grand Jury forepersons and a judge spoke-out about unjust indictments for felonies based on trace amounts of crack cocaine; the practice was unjust because the charge was a misdemeanor in every Cuyahoga County municipality except Cleveland. We spoke with a researcher, a judge, and a foreperson who played key roles in the pursuit of equitable application of that law. We found a 2016 Task Force, appointed by Ohio’s Supreme Court Justice O’Connor to study Grand Jury operations. The task force’s report included revisions to training that would have benefitted us. As best we can tell, none of the Grand Jury Task Force’s recommendations have been implemented.

We found that, over at least the past twenty years, our community has experienced resurgences of interest in true reform.

Sadly, most of the recommendations sit in literal or virtual file cabinets, unheeded.

***

In addition to the report on our overall jury service, the Grand Jury is also charged with auditing the conditions of the Cuyahoga County Jail. This is to occur quarterly, per state law. Each of the three juries serving during a four-month period visits separately. It is our observation through our Grand Jury training — and through reading countless reports of others before us — that most Grand Juries have not been informed that they are there to audit. The jail visit is treated like another educational tour or field trip. Because we clearly understood our duty to report back on what we saw, we took our auditing function seriously and are deeply dismayed to discover that this is an uncommon stance. We believe this is not due to neglect of duty, but to a failure of the system to properly orient each Grand Jury to the seriousness of this task.

Seeing the jail conditions is important for the body that indicts citizens, because this is where accused individuals — at least those who cannot afford bail — wait until their cases are heard by the Grand Jury and after indictment, when citizens might appear before a judge during a plea bargain session. The injustice of our cash bail system is blatantly obvious as one walks through the pods at the Cuyahoga County Jail, which has been the subject of a damning U.S. Marshals report and various investigations centering on its inhumane practices and the deaths of inmates.

The jail has also become a de facto mental health provider for many of the poor in our county. Numerous cases came before us in which the accused was reportedly suffering from mental illness. Every time a juror asked about the most humane way to help suspects whose charges seemed to be tied to mental illness, we were assured that indicting chronically mentally ill citizens was the best way to ensure they got the help they needed. This help is supposed to be through a mental health docket which provides specialized support and diversion services. However, that help was not evident in our jail tour, where mental health services consist of medication and crisis intervention. There must be a better way than incarceration to identify these cases and to help people who suffer from chronic mental illness.

There must be a better way for all of this.

***

We write today because we realize that the average citizen knows little about the workings of the Grand Jury. This is by design. As required by state law, the prosecutor's office maintains a veil of secrecy over the Grand Jury, to protect the reputation of the suspect before they have been charged. We believe that this veil is too large, covering-up inefficient and dysfunctional systems that ensure disproportionate rates of incarceration of non-white citizens, of those with low-income, of those with mental illness, and many times of those who may actually be innocent of the crimes that have been charged.

Grand Jurors are told that they are a check-and-balance on the prosecutor’s office, yet are trained and entirely guided by the same prosecutors they are supposed to “check.” There is no presentation from a defense perspective — in training or on cases. The only scrutiny comes from the jurors themselves, who have been “trained” in a quick and biased way. This means that the true check-and-balance is voiced individually as jurors wrestle with their consciences and educate themselves outside of the jury room. That’s a tall order, and the burden should not be on them. Unfortunately, in our experience, this means that jurors unwittingly collude with a wrongful process that allows unjust indictments to occur.

This means that the only way of stopping this unjust process is for individual jurors to find each other and unite their voices, and for the public – all of those potential Grand Jurors and those who are interested in reforming the process – to better know the process.

We ask for a redefining of felony laws and processes. Our prison system is overwhelmed because our society uses incarceration as the punishment for too many crimes. We need the three branches of government to take a hard look at the results of our current criminal justice system and overhaul the sentencing laws.

We ask for a redefining of prosecutorial success. We, as citizens, don’t want success defined as the number of indictments processed per day/week/month. We want fair indictments. This means indictments based on actual evidence and with full disclosure of the high rate of plea bargaining. As seen locally in the Kenta Settles case and nationally with the Breonna Taylor case, the Grand Jury system is flawed — leaving plenty of room for the perpetuation of a broken and racist system that is the gateway for mass incarceration.

While we are sworn to secrecy about the proceedings — the people, places, and charges — we feel it is our duty to speak openly about the mechanics of the Grand Jury. We hope this paves the way for necessary reforms.

Scene readers and community members are invited to endorse this position statement by signing our petition.

Tags: , , , , , ,

We welcome readers to submit letters regarding articles and content in Cleveland Scene. Letters should be a minimum of 150 words, refer to content that has appeared on Cleveland Scene, and must include the writer's full name, address, and phone number for verification purposes. No attachments will be considered. Writers of letters selected for publication will be notified via email. Letters may be edited and shortened for space.

Email us at news@clevescene.com.

Cleveland Scene works for you, and your support is essential.

Our small but mighty local team works tirelessly to bring you high-quality, uncensored news and cultural coverage of Cleveland and beyond.

Unlike many newspapers, ours is free – and we'd like to keep it that way, because we believe, now more than ever, everyone deserves access to accurate, independent coverage of their community.

Whether it's a one-time acknowledgement of this article or an ongoing pledge, your support helps keep Cleveland's true free press free.

More by Shari Nacson, John Filkorn, and Elaine Bayless

Read the Digital Print Issue

December 2, 2020

View more issues

Newsletters

Never miss a beat

Sign Up Now

Subscribe now to get the latest news delivered right to your inbox.

Calendar

© 2020 Cleveland Scene: 737 Bolivar Rd., Suite 4100, Cleveland, OH 44115, (216) 505-8199
Logos and trademarks on this site are property of their respective owners.


Website powered by Foundation