How Grand Juries Really Work

After the grand jury in the Ferguson case decided not to prosecute Darren Wilson, the cop who shot Michael Brown, I tweeted: “Government declines to find government guilty.”

That tweet spawned outrage. How dare I suggest that a jury of peers is actually the government? Don’t I know that government recused itself from the process, let the facts speak for themselves, and let regular citizens decide?

Breaking news: Government declines to declare the government guilty. #Ferguson #FergusonVerdict #DarrenWilson
— Jeffrey A Tucker (@jeffreyatucker) November 25, 2014

After I thought about it overnight, I realized something: most people have no clue how grand juries work. They actually believe the deliberately woven lies here. They imagine that once you get some kind of process in play that involves civilians, fairness is absolutely assured.

Having been a central figure in testifying against the government in a grand jury case, I can assure you that this is not true. The political elites own the process from beginning to end. They manipulate the outcomes in ways that are predetermined from the outset. It is a highly unusual thing for a grand jury to counter what the government desires.

Take a look at the venue. It is a government building, usually the courthouse where the prosecutors have their offices. Cops and bureaucrats are everywhere. For most everyone else, this is unfamiliar territory. You go through body scanners, you are in a strange place, you are completely controlled by government agents. You are handled and manipulated by officials from beginning to end.

This alone is a very intimidating experience. Every juror goes through this. He or she is taking time off work and experiencing something completely unlike the real life they know. It is scary but it is also somewhat flattering. Jurors feel like they are being invited to be part of something big and important, a big-shot government thing to which they had never previously had access. This alone inclines them to go with the official story, which mostly favors the prosecution but sometimes (in the case of Ferguson) is with the cops as the very core of what the state is all about.

In my own testimony in a grand jury case, the district attorney caught wind of the fact that I was not going to go along with the government’s desire. He brought me into his office an hour ahead of my testimony. He sat me down in a tiny chair as he sat in his big oak desk. He lectured me about duty, civic pieties, his own love of justice and truth, and the absolutely need for me to shape up and go along. He came close to calling me a traitor.

I sat there listening to this blowhard for a full 45 minutes. It was rather obvious to me that his motivation had nothing to do with truth. It was all about his personal political ambitions. He needed a win here. Nothing less would do. I seriously wondered what he would or could do to me if I declined to play my appointed role. It would have been so much easier if I had! I didn’t, of course, and I testified against this rat.

The district attorney had already lined up all his witnesses, all the evidence, all the tapes, and woven a story that seemed very consistent from top to bottom. This is the way they approach these cases. They tell stories, gathering “facts” on the basis of what fits with their preset tale, whether true or not. They are looking to create images and scenarios in people’s minds, regardless of the truth or falsehood of it all. They are looking to win and they have every advantage of anyone who would challenge them.

In my own case, I knew that their scenario was completely manufactured — no different from interpreting a constellation in the sky — but it is dazzling to see how they can weave a story based on selective facts. I swear that these guys could have turned my breakfast into a terrorist plot using witness testimony and carefully garnered details that play on people’s sense of paranoia.

In short, government owns this venue from beginning to end. Jurors are strongly encouraged and rewarded for going along (most don’t really want to be there anyway).

In my own case, I dug in very deeply and gave an extended speech that revealed the political motivations of the prosecutor and cast massive doubt on the whole proceedings. I pretty much blew up the government’s plans, but it was not easy. I ended up dividing the jury down the middle. Just before the verdict came through, the prosecutor bailed on his full agenda and managed a late-night plea bargain agreement with the accused, thereby sparing himself embarrassment.

This was all because of my testimony. But in doing so, I was fully aware that I had made myself an enemy of the state.

It would have been much easier to just go along.

I was also aware during my testimony of how the group-think aspect of the grand jury works. I watched their eyes as I spoke. Some people were intrigued. Others were furious at me. There are always a few people who are aggressive and passionate about favoring the government’s side. They tend to be outspoken and somewhat belligerent. They tend to bring others along with them. They love to suck up to the big shots in the room, which are the government workers who are bringing the case.

So, yes, what the grand jury does is pretty much in keeping with what the government wants. Despite all the structures and appearances, the process is rigged from the beginning.

As Ben Casellman writes:

Grand juries nearly always decide to indict. Or at least, they nearly always do so in cases that don’t involve police officers.

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them….

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.” Cases involving police shootings, however, appear to be an exception.

This analysis entirely accords with my own experience. We live in a system that heralds the symbols but not the reality of democratic involvement. We imagine that we have an independent court system that magically lives outside the state and its interests. So we manufacture these settings to trick the public into compliance.

It’s always the same. The judgement comes down and then the public is bombarded with more intimidating talk about how the grand jury of our peers has made the decision based on an exhaustive review of the evidence. It is not our place to question it. If we do question it, we are clearly unaware of the facts. Our only job is to go along with the results, and never mind that 99% of the time, the results of the grand jury entirely accord with government wishes and priorities.

So, in the case of Ferguson, we see the results. The government cobbled together its version of events. It had the law on its side. It could count on its ownership of the venue, its ability to cow jurors, its control of the agenda, and its mastery of the process. It’s rigged in every way but to the novice outsider it is rarely obvious how this works.

None of which is to say that the results of this particular grand jury were wrong as regards the application of the law. It is to say that we are being seriously naive to defer to the results of these theatrics on grounds that they exist outside the political agendas of those running the show.