Grand Jury First Circuit Court

I reported for GJ duty on Jan. 4, 2008 – about 195 people present with about 29 no shows. When announced that people could seek being excused about 20 people lined up, but as the rest of us sat the line grew longer, adding a few at a time until there were about 50 people seeking escape. Then individuals were called up to meet with attorneys and a judge – were these people with whom they were acquainted or maybe they had written something in the form we had to complete earlier than required more explanation?  The excusing took about 90 minutes of our time, perhaps made more bitter for some who had no excuse worthy of dismissal.

I was #140 among jurors left sitting.

The mix of people in the room seemed random and representative – professional types, laborers, all genders, a good mix by age, race/ethnicity.  But see exemptions below.

There are 6 GJs with 16 members each (total 96) plus alternates so it was pretty clear that most of us left in our seats would be selected to serve or as alternates.

Names were drawn from what looked like a solid bingo game barrel. I was selected for jury pool B, which will begin meeting on Jan. 16 and thereafter every other Wednesday for the remainder of 2008, including New Year’s Eve.

The reasons for being excused are:

  1. elected official while the legislature is in session or a judge for a US, state or county court
  2. active practicing physician or dentist
  3. member of armed forces or militia when on active service and deployed out of state
  4. active member of a police or fire department
  5. person who has served as a juror, either in a court of this state or the US district court for the district of Hawai‘i within one year preceding the time of filling out the juror qualification form
  6. active member of an emergency medical services agency (any government agency, private agency, or company that provides ambulance services, emergency medical services, or disaster medical services)
  7. person living more than 70 miles from the court for which jury service is required [not sure where that would be on O‘ahu]
  8. person 80 years old or older
  9. if jury service will cause a serious personal hardship (bold and underlined)

Also, people under 18 do not serve nor convicted felons nor people who do not read, write, speak, and understand English.

GJs consider only felonies, criminal cases, not civil cases.

1/16/08: Our orientation lasted for about 90 minutes then we heard two cases: terroristic threatening and meth possession, which was found as a result of being picked up for the threatening – one GJuror asked if they throw out the terroristic threatening, does the meth charge also get thrown out – all this was beyond what we are supposed to do or care about); the other case was seven counts of kidnapping, sexual assault, being prostituted (whatever the legal language is for that one). One of the saddest looking women I’ve ever seen testified. All this sounded like the next awful thing in the list of awful things that have befallen her and to which she has been accomplice or of which she has been the perpetrator.

One of the worst parts about serving on the GJ will be that I can’t talk about the cases. As it was explained to us more than once, silence and secrecy are necessary to protect the reputations of those accused, for, as we all have learned from our years of viewing court cases on television, the accused is innocent until proven guilty.

Here’s how the American Bar Association defines grand jury:

The primary function of the modern grand jury is to review the evidence presented by the prosecutor and determine whether there is probable cause to return an indictment.

The original purpose of the grand jury was to act as a buffer between the king (and his prosecutors) and the citizens. Critics argue that this safeguarding role has been erased, and the grand jury simply acts as a rubber stamp for the prosecutor.

Since the role of the grand jury is only to determine probable cause, there is no need for the jury to hear all the evidence, or even conflicting evidence. It is left to the good faith of the prosecutor to present conflicting evidence.

In the federal system, the courts have ruled that the grand jury has extraordinary investigative powers that have been developed over the years since the 1950s. This wide, sweeping, almost unrestricted power is the cause of much of the criticism. The power is virtually in complete control of the prosecutor, and is pretty much left to his or her good faith.

Until I read the above I was feeling that my fellow 15 panelists and I were serving a noble purpose. But here we are being called a rubber stamp — and the important point is that we need not be unanimous in our decision but only have a majority of the vote. On days when not everyone shows up, this could be a small number indeed. So, whether we all agree or not, if enough of us do agree then we can be viewed as a stamp. I did feel myself getting rubbery on our second case – seven counts and I voted “yes” on every one of them, although one charge was confusing and contradictory. Later, after you’ve served a while, you convince yourself that things will get sorted out when the case comes to trial.

While we have been reminded that we are to rule on “probable cause,” you can tell that jurors are thinking something like this: “Hey, this guy sounds pretty guilty to me.” The upside is that we don’t have to weigh the evidence and determine whether someone will serve or be set free, which is a relief. But we do determine whether the accused will begin the journey and in very short order: hear the evidence, take a vote on each count, move to the next case, or convene and go home, and see you in two weeks. The truth is I don’t think that fast. I also take too many notes, which when I first heard I could take notes and they provided pencil and paper to do so, I was very happy since notetaking is not allowed in jury trials. But now I don’t know. I wanted to make sure I had the facts straight but somehow in the process missed the narrative flow. I also ran out of room on the small piece of paper we were given, so that took up some of my thinking time: back of the page? new page? I did get some “facts” straight—dates and locations—but I missed the nuances and so voted yes on the above case that was muddy at best. I need to sharpen up, and I’ll get another crack at it this week and two weeks from now and then two weeks from then and so on until our last meeting on December 31.  Happy New Year.

I was not allowed to keep my notes.

ABA again: “Unlike potential jurors in regular trials, grand jurors are not screened for biases or other improper factors.” So is this a good thing or a bad thing?  I found the 13 GJ members (two had been excused) likeable enough, pretty jovial, although that now seems inappropriate considering what we’re called together to do.  We won’t be hearing examples about the better natures of humankind in our little room. But my group of jurors seemed a good cross mix of people from, as they say, various walks of life: housewife, college professor, petroleum company employee, coffee barista, electrician, consultant to non-profit organizations, painter as in objects not art, “between jobs,” employment counselor, worker at a US Army museum, retired teacher, staff person at an assisted living facility, retired Pearl Harbor shipyard worker as well as someone currently employed there. Of course, a true cross mix it can’t be – see exemptions above.  As one of my student workers in my office pointed out, he thought felons would make the best jurors since they had experience with the judicial system. An interesting point.

But what we do, or don’t do, in our daily lives is often much like the clothes we wear, important, certainly a reflection of our preferences, economies, fantasies, fears or happenstance (what is washed or at least not spotted) but a covering of our essential naked selves.

So are we good listeners? Are we compassionate or cripplingly sympathetic? Are we able to stay focused on the witness or the arresting officer now speaking or are we going to be thinking about what happened last week, a deadline at work we’ll likely not meet, a vacation in July, the fact that I missed the bathroom break and can’t stop thinking about my bladder? As the ABA says, we’re not screened, or tested. We are random picks in the hope that fate or the odds will create a good bunch of citizens who can tell a probable cause from an improbable one. But the ABA sounds doubtful, and in my case, I can say I don’t blame it (or them?).

The ABA site’s FAQs are relentlessly cynical.

The grand jury is independent in theory, and although the instructions given to the grand jurors inform them they are to use their judgment, the practical realities of the situation mitigate against it.

The grand jury hears only cases brought to it by the prosecutor. The prosecutor decides which witnesses to call. The prosecutor decides which witnesses will receive immunity. The basic questioning is done by the prosecutor on a theory he or she articulates. The grand jury members are generally permitted to ask questions at the end of a witness’s testimony. The prosecutor generally decides if he or she has enough evidence to seek an indictment. Occasionally the grand jurors may be asked whether they would like to hear any additional witnesses, but since their job is only to judge what the prosecutor has produced, they rarely ask to do so.

The prosecutor drafts the charges and reads them to the grand jury. There is no requirement that the grand jury be read any instructions on the law, and such instructions are rarely given.

I got the distinct feeling that the courts, including our independent counsel, who is the GJ’s go-to person and incidentally is someone I think I advised when she was an undergraduate, doesn’t want us to be too informed about the law. We’re not supposed to be mini-lawyers, but I feel uncomfortable not understanding the distinctions between first and third degrees, for example, even though my understanding wouldn’t change the counts in any way. We’re supposed to be Joe and Jolene from off the street (except for those previously restricted from serving), folks from “all walks of life” (again, with some restrictions) who strive to be impartial and stay tuned in for the duration of the presentation of the evidence, as partial and one-sided as it is. Which makes me wonder if attorneys test GJs by throwing curve balls of contradictory evidence: “Boy, Tuesday’s panel, is a real bunch of doodoos. They even voted yes on that last count.”

It’s the prosecutor’s show, so it’s one sided. I found myself filling in the blanks and not only interpreting witnesses’ states of mind and motivations but also wondering what the alleged perpetrators looked like, were thinking (often, “What were you thinking?!”) and how the defense would present the case. I later realized how dumb a lot of “criminals” are and was surprised at how low the threshold for a felony is.

As in, [here’s what was running in my head] “You think I’m threatening terroristically but I’m just upset and arguing with my boyfriend.” A big fan of points of view and perspective shifting, I found, even as my hand was taking too many notes, that I was off imagining the scene. A finely extracted narrative from one witness brought the scene to life – I saw myself standing next to the witness (and the threatened, in this case) and feeling his fear but also stroking my chin and thinking, “You know, I can see that this lady seems crazy out of control, but dude, don’t you sometimes feel so frustrated that shouting, swearing, and gesticulating wildly when your hand that happens to be holding an object usually not considered a weapon seems just the right thing to do?”

Serving on the GJ is also going to feel like arriving for the start of the film, then having to leave 30 minutes in and being asked to write the movie review.  We may find out “how it ends” if we assiduously check the newspapers but we won’t get to see, well, the movie. The defense’s voice will go unheard by us. We won’t get to see the alleged bad guys.

So that first GJ day following orientation, I, as deputy foreperson, had to step up to serve since the foreperson was one of our two excused members.  Not an onerous assignment (and thank you for not making me secretary!), but it required me to be more up front than I like to be:  swearing in witnesses, which meant standing with my right hand raised, reading from a script I should have memorized from consuming a diet of televised court cases, real and fictional, from my youth onward. But then there was paperwork, signing and initialing, and then appearing before the judge to render our panel’s rulings.

The court clerks were wonderful and reminded me of nurses. They soothed and coached and filled in the gaps between the judge and the attorneys. They stayed with us, invited us into the lounge for coffee, tea, and water. They reminded us that we could take a bathroom break now or not now. They told us to watch our step as we entered the grand jury room, which had steps up and down into the room and even in the room.  Some of us sat at a table in a pit and others sat around on a raised platform. What I particularly liked about one of our court clerks, whom I will name Martita, is that she wrote out the script I needed to read before the judge – and she highlighted the important parts in yellow.

Only the foreperson is required to go before the judge but one of the jurors, a woman around my age, who was very organized (all her GJ materials were 3-hole punched, slipped into plastic see-through sleeves, and placed in a blue plastic binder) and cheerful, said she’d stick with me since she wanted to see “this part of it.” Another woman said she wanted to go with me, too, for “moral support,” but then she thought about how long it was going to take and excused herself. As my cheerful, organized jury buddy and I waited in the hall, I noticed four people sitting across from us. My juror pal and I exchanged a look. I said, “I feel like I fell down a rabbit hole,” and she laughed.  But it was more like wandering into a Fellini film.

Then a guy hobbled up pressing his hands to his lower gut and said he was here to offer testimony. He’d just had hernia surgery but was good to go to testify.  Then he disappeared into a courtroom.

But back to the four on the bench in the hallway outside Courtroom 4. We saw a couple about my – our – age who were dressed for some sort of success: she with her long flyaway salt and pepper hair hanging over her bare shoulders and her Marilyn dress from “The Seven Year Itch” and a tattoo that started somewhere under the right strap and plunged down her right breast and into her braless cleavage.  He had a collarless dress shirt of a type that can be purchased from Zhejiang Weida Garments Co., Ltd. Heyetang Town Development Area, Yiwu City, Zhejiang Province. China,  Zip: 322009, contact person: Mr. Cheng, fax: 86-579-5952668/telephone: 86-579-5952797/website:  (When I typed in the web address, an alarming number of question marks appeared above this message: “This site may harm your computer.”) He was wearing tuxedo pants and a brocade vest and patent leather shoes.  His hair was slicked back and he was very tan. So was she, by the way. He looked nervous; she looked perfectly comfortable although the dress seemed completely out of place.

A bit down the bench was a teenage girl in a beige dress, embroidered eyelet fabric, a little make up, hair nicely piled atop her head and next to her was a girl about 9 or 10 dressed as Tinker Bell. They made only occasional attempts to interact with one another.  This kind of stuff is pretty boring for kids. In looking back, I don’t know what kept me from speculating more about them and their business there, but my jury buddy got to talking about horses, and I was off learning about equestrian therapy.

When our courtroom was finally unlocked, we were ushered in, and we stood waiting a little too long. The attorneys began chatting and that’s when we learned that the Fellini cast members in the hallway were here to be married. They entered the courtroom, filing past us into the judge’s private chambers while we cooled our heels in court. “So Martita,” I asked, “what’s up with the judge choosing only Haole women for our panel’s caretaker roles?”

I won’t pretend to be as sensitive as I could or even should be about who gets chosen for leadership positions, but I’ve lived in Hawai‘i long enough to notice these things. However, I don’t think I’ve lived here long enough to not ask about them. But here’s what I saw: almost 1/3 of our panel is male and ½ of the panel members are by my guess, local and 6 are Haole women. But the four leadership positions go to my Haole woman group? As I said, what’s up with that? Martita demurred. She wasn’t sure how the judge made the selection, but he looked over jurors’ questionnaires (and then I recalled, dimly, filling out something from the court), since as the ABA trenchantly points out, we were not screened. I must have looked trenchant myself, for Martita quickly added that another panel our judge previously had selected was all male.  She didn’t touch the race issue.

This write up at the time stopped here. I’m not sure why I didn’t record all the cases I heard during 2008 except I may have taken seriously the admonishment to not talk about what we were hearing in the GJ room. I do remember many cases involving ID theft (stealing an auntie’s credit cards; like I said, pretty dumb); drug deals that occurred in parks (when I see two cars enter a park, pull into adjacent stalls, one person gets out and enters the other’s car and after a moment, gets back in her/his car, I think “drug deal”); and a couple of horrifics: a serviceman who was accused of killing his wife and child and an incest case involving a father and his daughter, a family who was living in a park. The young girl came in to testify, caressing a photo of her father. Court cases can make you sick to your stomach and break your heart all at the same time.


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