22 minute read
Feature
WE KNOW. WE SERVED ON ONE. We heard over 1,000 cases in four months. We were devastated by what we learned about the process and its results. Our country must do better.
by Shari Nacson, John Filkorn, and Elaine Bayless
THE RECENT RELEASE OF TAPE
recordings from the Breonna Taylor Grand Jury and public statements by two 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 | clevescene.com | November 18-24, 2020 11
prosecutor’s table). And it takes an liaison might come back on another be on the number of cases completed; incredible amount of wherewithal to day after seeking clarification. the focus should be due process. be the voice(s) that slow the pace of During our four months of Grand Jurors should see body-cam churning-out the hefty indictment service, there were times when and dash-cam evidence for all charges docket. The expectation is to indict. jurors requested more evidence. that involve a conflict between a citizen There is one-sided guidance to Occasionally this was honored. More and law enforcement (e.g. resisting indict. There is pressure to indict. often, it was not. In some cases, arrest, attempting to flee, assaulting
A much healthier structure and our request for more information an officer, etc.). Indicting people for organizational culture is required changed everything — leading to these charges when the sole evidence for a Grand Jury to be truly true clarity and a just indictment. is law enforcement self-reporting — empowered to wrestle with and apply In other cases, we did not get much this is not justice. the law in every case. Some cases are more and were tasked with deciding Likewise, camera footage should simpler to decide. The evidence and based on too-little information. be required for any felony allegation charges are clear. But many cases In that regard, cases of resisting, that is based on consent/cause to per day bring uncertainty. Relying refusing, or assaulting a patrol search a vehicle. These vehicle on the idea that a Trial Jury will officer were particularly concerning. searches typically begin with a traffic get more time to look closely, Grand In a city under a Consent Decree stop, and as we have seen in recent Jurors can easily make peace with due to excessive use of force, we articles detailing statistics from the 51% certainty and indict someone wondered why a self-report by an our own county (University Circle; without much evidence. officer was sufficient evidence for Bratenahl), it is far too common
We wonder whether members of allegations that involve a conflict for vehicles driven or occupied by our Grand Jury cohort would have between citizen and officer. minorities to be stopped for a small voted the same way had they been Of all the thousand-plus cases we traffic infraction that becomes a taught that over 95% of these cases would never see a Trial Jury. Grand Juries see little of the evidence that
– the Grand Jury acting as a de facto Trial Jury by way of providing prosecution is not required to present all the prosecutorial leverage based on the 51% framework in cases that largely evidence it has, even exculpatory evidence never actually go to trial – is that that would shed doubt on the charges. Grand Juries see little of the evidence that would be presented to a Trial Jury. The prosecution is not required heard that summer, we saw body- felony charge — because officers to present all the evidence it has, cam footage exactly once. And we saw something dark under the even exculpatory evidence that would saw zero body-cam footage on cases seat, there were furtive movements, shed doubt on the charges. of resisting, refusing, or assaulting or a smell of fresh marijuana. We
To understand how evidence is law enforcement. Cellphone footage believe that, without a requirement presented requires an understanding from incidents around the country of video evidence of consent or cause of law enforcement roles. There are has demonstrated that an officer’s to search, there is room for law specialty units like financial crimes, account of a citizen resisting arrest is enforcement to coerce citizens into sex crimes, child abuse, the gang not always what actually happened. consenting to search. As a society, unit, homicide, etc. where cases are Cuyahoga County is no exception. we are obligated to look at the overt presented by officers and detectives What was initially discomfort racism and abuse of power that is who work the cases hands-on. These over this issue in the aftermath evident in these all-too-frequent cases. cases have been built over time and of our service became outrage in are presented with ample evidence. June 2020, when we read about THERE IS A MECHANISM IN Those presenting are extremely Kenta Settles, a mentally ill Garfield place for Grand Juries to serve as familiar with the case and are thus Heights man who was wrongfully an overall check and balance to the able to answer the jurors’ questions. indicted and detained for more than system, in theory, as the process That is not the case for regular four months in the Cuyahoga County rolls onward. patrol officers. Jail on charges of felonious assault The foreperson of each Grand
Patrol officers rarely present their on a peace officer and obstructing Jury is required to write a report at own cases to Grand Juries. There official business. The Grand Jury the end of jury service. We decided to is a role within police departments that heard Mr. Settles’ case was not approach this report collaboratively, called Grand Jury Liaison. This shown the body cam footage from as Foreperson, Deputy Foreperson, role entails one officer presenting the incident and voted to indict based and Assistant Deputy Foreperson. several cases from their department on the prosecutor’s presentation. We also decided to survey our jury to the Grand Jury. While there is an Eventually, when body-cam footage so we could include their words admitted element of efficiency to this was acquired by Mr. Settles’ lawyer, in our report. Assuming that the grouping of cases and one skilled the video showed officers beating, Court and the Prosecutor’s Office officer presenting in a way familiar tasing, and mocking Mr. Settles. would want to improve the system, to the Grand Jury, this means that County Prosecutor Michael O’Malley we detailed feedback about how cases are presented by proxy. The dropped the charges days after the we were trained — about laws that liaison reads the police report and body-cam video was made public. need legislative attention, about law other evidence to the Grand Jury Mr. Settles spent four months in jail enforcement and racism. (occasionally we would get a printed because that video was not shown to In the months that followed the document to review, but only for the Grand Jury before they decided filing of our report, we did not hear unique cases — otherwise it’s all oral whether to indict or not. back from the Administrative Judge presentation). If there is a question That case demonstrated exactly nor the Prosecutor’s Office. This was that the file cannot answer, the why the Grand Jury’s focus should not troubling because the report detailed 12 | clevescene.com | November 18-24, 2020 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-andbalance 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.
How Can the Grand Jury System Be Improved?
Because Grand Juries are not usually provided first-hand review of evidence and because over 95% of defendants plea to avoid a trial, most felony convictions occur without any direct review of exculpatory evidence. For most citizens, the Grand Jury will be the first, last, and only jury that ever hears their case.
There is no “next jury” to look more closely at the evidence.
Through jury service, average citizens — laypeople — are tasked with learning and applying the law. The jury is meant to be part of our government’s system of checks and balances. And, yet, there are operational issues and an over-dependence on the prosecutor’s office that interfere with the Grand Jury’s ability to truly function as a check and balance.
We recommend the following changes be implemented in Cuyahoga County as essential steps toward actual justice.
OPERATIONAL CONCERNS 1. Limited and biased preparation creates a jury that is subjugated by the prosecution.
Despite being conceived as a check and balance on the system, the Grand Jury is not given a full picture of their role in criminal proceedings. They are not privy to the reality of what happens post-indictment, or the true effect an indictment can have on a person’s life. This undermines the Grand Jury’s capacity to be impartial and act as an independent voice.
SOLUTIONS: Operational changes to reduce prosecutorial bias
• Training needs to be overhauled to prepare the jury for their responsibilities. At a minimum, this should include presentations by previous Grand Jury members; a defense attorney (public defender); and clarification of the most common charges they will hear. • Ideally, training should be led by a neutral party. • Through printed handbooks, swearing-in, and training, educate jurors up-front that very few cases (≤ 5%) will go to trial. If
there is uncertainty about ANY element, the jurors need to slow the process and carefully review evidence. • Curtail the prosecutorial practice of stacking charges. This process exploits the
Grand Jury and manipulates the accused (to elicit a plea). • The Grand Jury needs to be empowered to directly review and interpret the laws that are being applied. Otherwise, jurors are put in a position of deference to prosecutors, which undermines the impartial role of the
Grand Jury. Provide jurors with printed copies of the Ohio Revised Code (ORC), which defines all state crimes. • Bring the ORC up on the screen, showing the definitions for the proposed charges so jurors can view that language directly. • Prioritize and clarify the jail audit function of the Grand Jury. Provide a checklist and copies of prior Grand Jury reports on jail conditions. Ensure submitted reports are read and actions are taken to remedy issues.
2. Inaccessible evidence leads to wrongful indictments
For the majority of cases, the only evidence presented is the initial police report, and often it is presented by a liaison who has no first-hand knowledge of the incident. In a city with a Consent Decree and multiple instances of excessive use of force by police, additional evidence before indictment does not seem out of line.
SOLUTIONS: Operational changes to reduce wrongful indictments
• Third-party evidence (camera footage or witnesses) must be required to charge a citizen with resisting/fleeing/obstructing • Camera footage must be provided to verify any consent/cause to search a vehicle that becomes the foundation of a felony charge • Require prosecutors to honor requests to review evidence. Provide jury recourse if such requests are not honored. This is due process. • Require law enforcement officers to present their own cases. Liaisons are only able to furnish the jury with the information included in the written report, which the jury could just as easily read themselves.
LEGISLATIVE CONCERNS
In addition, we call on Cuyahoga County leadership to recognize and address these barriers that perpetuate racial disparities within our criminal justice system.
Systemic barriers and institutionalized racism lead to wrongful felonization of citizens. Our laws are not objective and everyone is not equal under the law. Humans make subjective decisions at every juncture based on their own prejudices: from what actions to criminalize, where to enforce the law, which crimes to prosecute and how to punish those crimes, what evidence to present, and how and when to present it.
SOLUTIONS: Legislative changes to reduce racial disparities within the indictment process
• Allow the jury to mark cases that belong on a specialized mental health docket. • Eliminate cash bail for all non-violent offenses • Reduce the number of crimes that are considered felonies, including drug possession and nonviolent crimes, such as passing counterfeit money. • Allow for a more representative jury by paying minimum wage or shortening the term. • In regard to community concerns regarding excessive use of force by law enforcement, camera footage should be regularly audited — not solely when there are complaints. Every municipality should have a citizen review panel to conduct random audits of body/dash cam footage. • We call upon the State of Ohio to update and implement the changes recommended by Justice O’Connor’s Task Force to
Examine Improvements in the Ohio
Grand Jury System. In the interim, we recommend that Cuyahoga County implement the 2016 recommendations even if the state does not.
