What Might Explain D.C. Grand Juries’ Failures to Indict?

chairs for the jury

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.

Continue ReadingWhat Might Explain D.C. Grand Juries’ Failures to Indict?

Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers.  The most recent appeal marks the sixth time that Mr. Flowers has been tried for charges arising from a quadruple homicide that occurred at the Tardy Furniture Store in Winona, Mississippi.  Mr. Flowers has been incarcerated for over 20 years, as he awaits trial.  Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black.  Douglas Evans, the prosecuting attorney of all six trials, is white.

APM’s investigative podcast titled In the Dark conducted an in-depth analysis of the case.  The podcast explores the nature of the circumstantial evidence that the prosecution relied upon.  It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered.  But, for the purpose of the appeal, sufficiency of evidence is not at issue.  The narrator, Madeleine Baran, explains that “we’ve talked to hundreds of people who live in this part of Mississippi and it’s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.”  And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court.

Continue ReadingOut of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi

Racial Discrimination in Wisconsin Jury Pool Practices

A courtroom is filled with women dressed in long black dresses and wearing hats.
Crowd of women register for jury duty after gaining the right to vote, Portland, Oregon, 1912.

“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)

As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant.  The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.

Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population

The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants.

Continue ReadingRacial Discrimination in Wisconsin Jury Pool Practices
Older Posts