Structural Inequities in the Criminal Justice System: A Personal Account.

Author:Basso, Phil

To quote a colleague, I was "woke." For me, serving as the deputy of a national human services association, being woke feels like being foolish--for not knowing before what I now know in my bones. But it also feels like being cleaner, wiser, and more equipped. My summons to serve on a District of Columbia (DC) grand jury came in a small official-looking envelope. Mandatory service it said, with no exceptions. I had been called to petit jury service before--the 12 people comprising a trial jury--and had been picked for one. But this was a grand jury, and I had no idea what it was or did.

Criminal grand juries in DC serve for five straight weeks, hearing witness testimony or other evidence for prospective criminal felony cases from DC government prosecutors. The role of a grand jury is to determine whether the prosecutor and government have "probable cause" to bring such a case to trial, in the form of criminal "indictments." Did the crime probably occur, and did the accused probably do it? The evidence provided is limited to a prosecutor's objective of meeting probable cause tests or requirements that fit the criminal charges in question. There are no defense attorneys involved. A DC grand jury has 23 people on it, and votes to indict or not when the prosecutor asks them to do so. A simple majority of 12 "yes" votes results in an indictment.

On our first morning of service, we were told that we were upholding the U.S. Constitution's Sixth Amendment, which guarantees the rights of criminal defendants--including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, the right to know who your accusers are, and the nature of the charges and evidence against you. Were we a shield as envisioned by the Founding Fathers and envied the world over? Going into my grand jury service, I sure thought so, and I was dedicated to being an excellent jurist.

  1. "Lost Potential" and "Suffering"

    As Grand Jury One, we were given the prospective felony cases that were the hardest to listen to: murders, assaults, sexual felonies, child abuse, and domestic violence. I've had the opportunity to recite this list a few times to live audiences, and almost a year later, I can't do it without starting to cry:

    * A child is sent to stay with "friends" for the summer and returns in shock and with various injuries we see in evidence photos;

    * A young girl tells us about her being prostituted many times daily on drugs in a basement, with a chip on her shoulder and a teddy bear in her arms;

    * A man comes to visit DC from a small town in the South to visit his old flame, is stabbed repeatedly, and then dragged along a bloody floor by a jealous ex-boyfriend;

    * Two sisters testify about a history of sexual abuse from their stepfather, never having told each other until now, in the hope that he would focus on one of them and ignore the other.

    I was also deeply troubled each day by how people--just like me when they started out--experience long histories of abuse and neglect in their relationships and material circumstances. They don't get the help they need early enough, and then sometimes become abusers themselves, learning about violence from those around them, unlike the role models I had growing up. Then they find themselves in front of a grand jury, where there is no chance for that support or empathy. Where they are demonized, despite who they really are and who they might have become. Today's felon is yesterday's vulnerable child.

    Grand juries don't hear one case at a time, with all the live witnesses and evidence lined up in sequence by the prosecutor, as they would do for a regular trial. We heard evidence on 73 criminal felony cases. Any given case was presented to us piecemeal, over any number of days or weeks. By the time we were asked to deliberate and vote on a case, our sole yellow legal pads served as our best recall. The average time we had to deliberate and vote was around 20 minutes per case, including cases with more than 10 "counts" or elements of criminal behavior. When asked to vote on an indictment, it was often near the end of a day or near our lunch break.

    Throughout this cycle of evidence and indictment votes, we were reminded that our role was to determine probable cause, and not guilt beyond a reasonable doubt. That was the job of the trial jury--12 people who would have to vote unanimously to find someone guilty. We were told that probable cause was the "lowest legal bar" for the court to establish. This continual reinforcement served to focus us on DC's written probable cause standards for the different felony counts before us. And in the earliest days of our jury duty, my primary focus for each case was simple: "Did the crime probably occur? Did the accused probably do it? Is the evidence credible?"

  2. Starting to Really Understand

    "Don't think about what happens after your vote." I knew what our...

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