When I have to tell a client or their family the grand jury has indicted their case I often get a reaction that I equate with the sign of impending doom. It's almost as if I have told them they have terminal cancer and only 90 days to live. Yes, sometimes the reaction is that strong. I have even been asked "does that mean I am guilty?" No. It doesn't.
What is a grand jury in Cook County, Illinois? It's 12 people. How are they selected? The Illinois Criminal Code (specifically 725 ILCS 5/112-1) reads: Selection and Qualification. The grand jurors shall be summoned, drawn, qualified, and certified according to law.
In Cook County new grand juries are seated the first Monday of the month and no more than 6 grand juries can be convened at one time. What do they do? They are supposed to hear evidence and when appropriate, issue indictments or "true bills".
Let me back up and provide a little background. In Illinois a felony can be charged one of two ways, either by information or indictment. Both roads, however, end up at the same place, the felony trial courtroom. It does not matter which way the State took to get you there, once a charge if filed the procedure is the same. The defendant is arraigned (formally charged). Discovery begins. Motions are filed. Hearings are conducted. And some cases go to trial but most are plea bargained, which is the criminal equivalent to a civil settlement. Some cases plead out at the arraignment. Others take years to reach a disposition.
We in the criminal courts business use the word "disposition" to mean the case is done being litigated. A guilty verdict is a disposition. A not guilty verdict is a disposition. A guilty plea is a disposition. A dismissal is a disposition.
Cases charged by information are done via a preliminary hearing (see earlier posts for a more detailed explanation). If the judge presiding over the hearing determines there is probable cause, the defendant is charged by information. A preliminary hearing, however, is an adversarial proceeding. What this means is that the defendant is there and so is his or her attorney. The defendant has the right to confront (cross-examine) the accuser, which is usually a police officer.
The typical crimes that are charged via information through the preliminary hearing system are: drugs, guns, and retail thefts. In 2009, however, due to a new State's Attorney being elected in November 2008, the State has reduced the number of cases they are submitting to the grand jury. Earlier this year I observed a trend. If the crime involved a victim (such as robbery or aggravated battery) it went to the grand jury. This summer, however, I started to see robbery cases go through preliminary hearings and the victims coming to court to testify.
I recently had a shooting case that went through preliminary hearing with a detective as the lone witness.
The really violent crimes, such as murder, attempt murder, aggravated battery with a deadly weapon, etc go through the grand jury. What's the difference between a grand jury proceeding and a preliminary hearing? The defendant is not present at the grand jury. In fact, there isn't even a judge. Defendant's attorney is also not present. It's 12 jurors, court reporter, assistant state's attorney, and a witness. That's it. Grand jury proceedings are secret, but I do get transcripts of the proceedings during discovery.
Here's the point of the post. Grand jury proceedings are largely a sham covered up by a noble sounding name. The grand jury has subpoena power but in my experience, rarely exercises it. Any juror can ask a witness questions, but again it rarely happens. The grand jury is supposed to be an investigative body but they just sit there and must be extremely bored. Most grand jury transcripts are less than 6 pages, including the court reporter's certification. Here is an example of a typical grand jury proceeding after the witness is called and sworn:
An assistant state's attorney is asking the questions.
Q. Detective, can you state and spell your name, give your star number and unit of assignment?
A. Detective John Smith. S M I T H. Star # 999, Area 5, Robbery.
Q. Did you have occasion to investigate an armed robbery that took place at approximately 5000 W. Grand on July 1, 2009?
Q. And through your investigation did you learn Mike Defendant was identified by witnesses as the assailant?
Q. And through your investigation did you learn a handgun was used during the robbery?
Q. Did this robbery take place in the city of Chicago, Cook County, Illinois?
Then the assistant state's attorney asks if any of the jurors have questions (and they usually do not). The grand jury can retire to deliberate much like a trial jury, but again it rarely happens. Instead the foreperson says "true bill". Once those words are spoken, formal charges are filed via indictment.
I don't know if the jurors whisper among themselves because it's never recorded. Maybe they nod or give a thumbs up. But it only takes 9 out of the 12 to issue a true bill. As a comparison, a criminal trial jury must be unanimous to convict. And criminal trial juries in Illinois are also comprised of 12 jurors.
It's evident that grand jury proceedings are a slam dunk for the State. The State only has to introduce enough evidence for an indictment, which isn't much. And most of the testimony at grand jury proceedings is hearsay because the rules of evidence do not apply. Remember, there isn't a judge present.
The State will never elicit a fact favorable to the defendant. The grand jury, although intended to be an investigative body, are laypeople that know almost nothing about investigating any crime, let alone a serious one such as homicide.
Throughout the course of an investigation sometimes the detectives get information from a witness that is favorable to the defendant. Such people are never called before the grand jury and the detective will not mention these witnesses exist. The assistant state's attorney isn't going to ask the question and the grand jurors don't think to. It could be so simple too.
A juror could ask:
Q. Detective, during your investigation did you get information that someone else other than the defendant was the assailant?
A. Uh, well...yes.
Oops. Assuming the grand jury system worked, that question might open a huge can of worms for the State. Once the name of an exculpatory witness is known, the grand jury should issue a subpoena and hear what the witness saw. It never happens.
At a preliminary hearing the defendant has a chance, albeit small, to avoid being formally charged. But in Illinois, if the defendant prevails at a preliminary hearing, the State can take the same case with the same witness to the grand jury and charge via indictment. I have seen it happen and it's ugly.
Imagine being arrested for a felony and put in the county jail. Two weeks later you have your preliminary hearing and the judge finds no probable cause. You're released from custody that night and think your problem is over. Two weeks later you get a letter informing you the case has been indicted and you have to come to court. Wow. And to add insult to injury, at your next court date (the arraignment) the State is going to reset bond, or attempt to put you back in jail and more often than not, they succeed. Yikes.
My investigator is a retired Chicago Police homicide detective. He said the State could indict a ham sandwich. I found that funny.