I once had the privilege of serving on a federal grand jury in Washington DC. I describe it is as a “privilege” not out of any reflexive paean to the criminal justice system, which has many flaws, and not because I was especially thrilled to have been selected. My service was particularly arduous; we met from 8am to 4pm five days a week, after which I would complete all of my work each day as a full-time law firm associate. And that continued for five weeks straight, leaving me, by the end, completely exhausted. The sense of privilege I felt came not from the system or the process, but from having the experience of serving with a group of fellow citizens from all walks of life who were all dedicated to completing one task: determining if the government had enough evidence to prosecute someone.

Based on that experience, it was with considerable interest that I read news reports that several grand juries in the District of D.C. have recently refused to return indictments in high-profile cases involving protesters. Three successive grand juries, for example, refused to indict protester Sydney Reid on charges of assaulting a federal law enforcement officer, when an FBI agent assisting in blocking Reid from interfering with an arrest suffered cuts or scrapes on her hand. Why did they refuse? Over on the Volokh Conspiracy, Prof. Josh Blackman suggests that while it’s possible DC grand juries “are carefully attuned to the gradation between felonies and misdemeanors,” he offers an apparently more plausible explanation: DC jurors are a bunch of hacks. DC US Attorney Jeanine Pirro has a similar view.

There’s a temptation, famously mocked by film critic Pauline Kael, to think that the things you and your friends care about are the things that everyone cares about. But despite the attention law professors and lawyers generally pay to politics, much of the rest of the US population is far less interested. I would hesitate to assume that the average grand juror in DC, or LA or Oklahoma City or anywhere else is as steeped in partisan politics as your average social media poster, or law school denizen, or avid consumer of news.

I don’t know what happened in these three grand juries, or in the others that have refused to indict protesters in DC and LA. I did see firsthand however that it is really hard for a requested indictment to fail. There were jurors on my grand jury that were more skeptical of the police, and there was at least one juror who had qualms about the over-criminalization of drug possession. Some defendants were more sympathetic than others. But the few “no” votes on an indictment almost never came anywhere near the 12 necessary to refuse to return a true bill. If the government had evidence on each element, we voted to indict.

And I’m stressing “each element” because the jurors on my grand jury — replicated on a criminal jury I served on in Milwaukee much more recently — paid very close attention to the elements of the crime and whether there was evidence on each one. They took their job very seriously. Of all the charges we considered, we refused to indict just once, on one charge of a multi-count indictment. And the reason why was because there was no evidence of one of the required elements. I’m embarrassed to admit that it was not me, the only practicing lawyer in the room, who caught this. This was late in our five-week tour of duty, and I’ll plead fatigue. But one of my fellow jurors, who had no legal training at all, was conscientiously tracking each element of each charge and comparing it with the evidence that had been presented. And she noticed that on one of the charges there was an element missing. That was the only time we refused to indict.

So, again, I don’t know what happened in the Reid case. Perhaps the government got extremely unlucky in who was drawn to serve on three separate grand juries. Perhaps ordinary citizens of DC have become far more polarized than people elsewhere in the 20 years since I lived there. Blackman suggests that the grand jurors are all people “who can take time off from work,” but DC is famously unforgiving of work-related excuses, which is why I was on a grand jury in the first place. Pirro claims that they’re all elitists from Northwest DC, but it defies belief that the jury rolls have become that far skewed, or that only the elites have trouble begging off jury duty.

I have a different theory. It’s been reported that Pirro and other US Attorneys have instructed prosecutors to pursue the maximum charges possible. Reid was charged with a felony under 18 U.S.C. § 111(a), which makes it a misdemeanor to knowingly “forcibly assault[ ], resist[ ], oppose[ ], impede[ ], intimidate[ ], or interfere[ ] with [a federal officer] while engaged in or on account of the performance of official duties,” and elevates it to a felony if the defendant’s “acts involve physical contact with the victim.” I don’t know how they break that down in DC but the 7th Circuit sample jury instructions require proof that the defendant “forcibly” did one of the verbs in clause (1) (assault, resist, etc.) to a federal officer, and thereby made bodily contact, while acting with knowledge of their conduct (i.e., not by accident or mistake). I haven’t seen any video of the encounter so I don’t know what reasonably might have been subject to question, but the jury might have had doubts as to whether Reid’s conduct was “forcible,” or whether she acted “knowingly” with respect to the charged offense, or whether she made “bodily contact.” We simply don’t know, but if the grand jury found one of those elements lacking, that could easily explain how multiple grand juries all arrived at the same conclusion.