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A Primer on South Dakota Grand Juries

An eager reader suggests that, given the headlines surrounding the grand jury non-indictments of police officers involved in the deaths of suspects in Ferguson and Staten Island, we could benefit from a better understanding of how grand juries work.

For expertise, I turn to Pennington County State's Attorney Mark Vargo and Rapid City attorney Patrick Duffy. Vargo has worked with grand juries as a state and federal prosecutor. He also served as a grand juror for six months. Defense attorneys are generally not directly involved in grand jury proceedings, but Duffy has counseled witnesses and defendants appearing before grand juries. Duffy regularly reviews grand jury transcripts of clients indicted by that process.

In South Dakota, the grand jury is a panel of six to ten citizens convened to determine whether the state should bring charges against a suspect. If you are registered to vote or licensed to drive and 18 or older, you could be a grand juror.

The grand jury differs from the petit jury (ah, French! "small" jury, the trial jury we are used to seeing in the news) in its standard for action. The grand jury, in Vargo's words, must "evaluate whether there is probable cause that an offense was committed and that the person to be charged is the one responsible." Vargo says police use the same standard in warrantless arrests: police arrest and grand juries indict when it is "more likely than not" that a suspect has committed a crime. To convict, petit juries must clear the much higher bar of guilt beyond a reasonable doubt.

Indictment is also requires fewer votes than conviction. A grand jury may indict on less than unanimity. Six or more jurors must vote to indict.

Unlike the petit jury, the grand jury is not an adversarial setting. No defense attorney or judge is present. Neither is the defendant. Witnesses face questions, but not the cross-examination by opposing attorneys. A good prosecutor, says Vargo, presents both the strengths and weaknesses of the case.

Conducted properly, the grand jury weeds out weak cases that would not stand up in court. The grand jury also checks the state's prosecutorial power. As Duffy says, the grand jury "protects us from baseless charges brought by law enforcement." It spares innocent individuals the stigma of being charged with a crime, as well as the financial cost and strain of a criminal trial.

The secrecy of the grand jury is a necessary part of that protection. However, Duffy says that secrecy is also a basic flaw in the now well-known grand jury investigations in Ferguson and Staten Island. "Whenever an agent of the state kills a citizen," Duffy contends, "the level of confidence society needs to have in any conclusion about guilt or innocence is obviously very high." Duffy says matters like these police killings should unfold publicly, before a petit jury, "because sometimes a public trial is the only way for society to have complete confidence in the result."

The rage around the Ferguson and Staten Island non-indictments revolves around the perception that the criminal justice system is rigged for cops and against blacks and other minorities. With respect to police, there may be little we can do with the grand jury system to address such perceptions. South Dakota grand juries follow no special procedures in cases involving law enforcement officials. Vargo says such special rules for any defendant would be inappropriate. The only likely difference in a grand jury's handling of a case involving a police officer would be the recusal of a prosecutor whose relationship with that police officer's department "could jeopardize the charging decision or the public's confidence therein." However, Vargo says the number of cases coming to grand juries with officers as potential defendants is "exceedingly low." Shootings by police officers are "frequently investigated by the Division of Criminal Investigation rather than a local agency."

Nor is it easy to build into the grand jury some sort of racial justice guarantee. The grand jury should reflect its community as accurately as a petit jury does. Duffy says properly reflecting the community will increase public confidence in grand jury decisions. But prosecutors don't get to pick grand jurors by color, income, or any other criterion. The randomly selected grand jury pool only reflects the folks who register to vote or get drivers licenses. In Pennington County, Duffy says getting juries that "look like" the community is complicated by the large population of American Indians who float between Rapid City, Pine Ridge, and Rosebud.

Besides, the public cannot take full confidence in the representativeness of any one grand jury, since the identities of grand jurors, like the proceedings, are secret.

Duffy says the best defense against courthouse prejudice is effective attorneys playing their part in an effective criminal justice system:

The public process of trial by jury, when conducted by competent counsel, is the ultimate safeguard of our rights. For the most part, the better the lawyers, prosecution and defense, who try the case, the better the quality of the justice that will emerge.

Great trials conducted by great trial lawyers before great judges produce great justice [Patrick Duffy, e-mail, 2014.12.08].

Vargo says a grand jury should respond to racial or ethnic prejudice only when it is an element or motive in a crime charged. Grand juries "should be (and, I think, generally are) focused on the proof against a defendant." If grand juries are indeed failing black and Indian victims of crime or shielding white police officers from proper prosecution, the solution does not lie in changing the grand jury system; the solution lies in creating better citizens who can better carry out their sole duty as grand jurors—in Vargo's words, "to make a finding as to probable cause."

Vargo sees two important lessons for all citizens in the discussion of the Ferguson and Staten Island cases:

Perhaps the most important lesson for all of us is in the difficult task of keeping an open mind. Once the narrative on each case came out, there seemed to be precious few people changing their minds. And yet the evidence available to the public grew (and changed) almost daily.

The other lesson (closely related) is to stay informed. Even among those who pay attention to the news, I would wager that less than 10% of people know what the name of the charge was, much less the elements, for the homicide count that the officers would have been facing. In fact, I just spent 20 minutes looking for a news report that listed the charges and could not find one unless you count the comments sections. If you don’t know that, how can you have an opinion about whether he should have been indicted? [Mark Vargo, e-mail, 2014.12.09]

The grand jury system, like the criminal justice system, is what we make it. It depends on well-educated, open-minded citizens committed to truth and the rule of law.

25 Comments

  1. Bill Fleming 2014.12.15

    Good overview, Cory, and kudos to you, Mr. Vargo and Mr. Duffy for doing this. You all do us a generous public service by giving your time to this discussion. Thank you.

    A few questions:

    1. Does every case that goes to trial have to go through a grand jury "approval" step first?

    2. Is it the prosecutor's obligation to specify the specific charges they want a grand jury to consider?

    3. Who gives the grand jurors their instructions (I'm assuming they are amateur everyday citizens, called for duty the same way trial jury members are?

    4. Is there a case specific "voir dire" process for grand jurors similar or identical to the one trial jurors go through? And if so, who makes the decision to accept or eliminate juror prospects?

    All for now. I'm sure other readers will have more.

    Thanks again gentlemen. I look forward to an interesting discussion of this here on manville. I'm guessing it's the only public discussion of it's kind going on in South Dakota, and again, I commend you all for your willingness to have it.

  2. mike from iowa 2014.12.15

    OJ and his dream team of lia...er lawyers proved justice can be bought if you have enough money,which most of us don't. One thing I will say for prosecutor Marcia Clark is how nice she looked naked during off hours.

    Interesting view of how grand juries are supposed to work. I had always assumed the defendant was not allowed to testify,but apparently that was a wrong assumption.

  3. Bill Fleming 2014.12.15

    Above... not "manville," Madville (bite your tongue, Fleming. :-)

  4. Deb Geelsdottir 2014.12.15

    I've heard talk about making grand jury transcripts public. Are they? Couldn't they be posted online without compromising the jury's anonymity?

    An acquaintance was called for grand jury duty here in MN. There was some type of voir dire and she was not accepted. Psychiatric professionals rarely are. I wonder if clergy are viewed similarly by prosecutors?

  5. caheidelberger Post author | 2014.12.16

    ("Manville"—I need to do a podcast on that theme. :-) )

  6. caheidelberger Post author | 2014.12.16

    In response to your questions, Bill, from my conversation with our legal experts, I can answer #1: In South Dakota, no, the grand jury is not a necessary step. At the federal level, however, Vargo says nearly every case has to go through that step.

    On #4, Vargo says there are strikes for cause (mostly folks who can't be on the panel for six months), and the prosecutor gets to strike two.

    I'm not sure about the other two questions. However, I note that SDCL 23A-5-8 says "After the grand jury is impaneled and sworn, it must be charged by the court. In doing so, the court shall give the members such information as it may deem proper as to the nature of their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. The grand jury must then retire to a private room and inquire into the offenses cognizable by it."

  7. caheidelberger Post author | 2014.12.16

    Deb, I can't speak to prosecutors' views, but I can point to SDCL 16-13-10, which exempts clergy from jury duty in general if their religious beliefs conflict with such service (what, "judge not, lest ye be judged"?).

  8. mike from iowa 2014.12.16

    Surprised that no one in particular had anything to say about neo commie,fascist,crony capitalist,I'm a better christian than all of you, grand juries.

  9. Bill Fleming 2014.12.16

    Thanks, Cory. Looks to me then that the prosecutor is in almost complete control of the process. Curious that most other countries, including the UK where it originated, have banned Grand Juries from their judicial systems.

    It appears to be enshrined in our 5th Amendment, and so no doubt would be difficult if not impossible to eliminate. But as a debate topic, it might be interesting to hear the the pros and cons of our Nation having them, especially in light of what appear to be fairly serious flaws in the system.

    Are we giving prosecutors too much power? Is there a better way to balance that power and hold errant prosecutors in check?

  10. rollin potter 2014.12.16

    How many times does a grand jury bring back an answer that the prosecutor and the judge does not want to hear??????

  11. Mark Vargo 2014.12.16

    Bill,

    Per your questions, Cory has it correct on #1 & #4. I would only clarify that there are unlimited excusals for cause, after which the prosecutor has two preemptory challenges.

    On question #2, the prosecutor must, in fact, present charges to the GJ, but may present "alternative charges," in effect giving the GJ choices. This leads us to question #3...the prosecutor is, in fact, the person who instructs the GJ on the law. By and large, we use the pattern jury instructions to do so.

    Your later question, on whether we give the prosecutor too much power is a good one. The Catch-22 is that the GJ system is designed to avoid putting a citizen accused through the wringer that is the adversarial process. If we expand the role of courts and defense, we run the risk of turning the GJ into a mini-trial, with all the attendant stress and cost.

    Deb,

    We have far less latitude in the GJ than we do on trial juries, just because we have to deal with a more limited pool of potential jurors, i.e., those who can serve for six months, and only two preemptory challenges (compared to 10 for a felony trial).

    A smart lawyer relies more on individual characteristics than on profession, but it is fairly rare for a mental health professional or clergy to make it onto a petit jury. I think they are struck almost as often by the defense as by the prosecution, but the end result is that they rarely sit.

    Rollin,

    It is fairly rare for the GJ to "no bill" a case. In the six months that I sat as a GJ, I believe that we did so in just two files, one where the witness reversed his testimony and the other where we felt that the crime was charged under the wrong sub-section of the statute.

    In the first case, I doubt that the prosecutor disagreed, given what evidence there was in front of us. In the second, the prosecutor was somewhat upset, which was a bit awkward less than a year later, when I became his boss.

  12. Bill Fleming 2014.12.16

    Mark, thanks for your feedback. This sentence is intriguing:

    "If we expand the role of courts and defense, we run the risk of turning the GJ into a mini-trial, with all the attendant stress and cost."

    In some ways, isn't that what it is? True, a "guilty" person can't be found completely guilty via a grand jury, but it seems entirely possible that a guilty person can be found completely "innocent" via one, and, due to the secrecy of the evidence presented and the people weighing it, many — if not most people — will never know anything about it. Kind of a potential "black hole" for justice?

    I would hope the elimination of "stress and cost" isn't such an overarching value standard that we routinely miscarry justice in the bargain. But more to the point, how would we know if we did? Where's the "safety valve?"

  13. Roger Cornelius 2014.12.16

    Not to debate the Ferguson case, but the grand jury allowed testimony from the perp, Darren Wilson, which gave the impression that he was able to exonerate himself from prosecution thereby skipping a petit jury.
    Is this a usual practice in South Dakota where a potential defendant is allowed to testify before a grand jury?
    The most recent police shooting in South Dakota was that of a Native American woman, Joy Sherman, who had a history of addiction and mental problems, as is typical in South Dakota, the DCI investigated and called it a justified shooting, end of story.
    There is an epidemic of police shootings involving young black men in this country, there was another one yesterday where a black man was shoot to death by police for holding an air rifle in Walmart, he had planned to purchase the gun.
    Have police forces changed the policy of shooting to disable and disarm to that of legalized assassination?

  14. Douglas Wiken 2014.12.16

    Grand juries have too much in common with witch trials.

  15. Mark Vargo 2014.12.16

    Bill,

    My point is that if you want a full-blown trial, you could eliminate the GJ. If it is a prophylactic measure, we should not expect it to cure all ills. And making it more public has advantages, but what about the cases that are no-billed? The unintended consequence would be far greater effects on an exonerated defendant.

    When I first came to SD from the Miami State Attorney's Office, one of my wife's relatives worked for the AG's office. He sat me down and impressed upon me that prosecution here had to be different. "Mark, if you charged a man in Miami and dismissed the case the next day, he would know, his wife would know and his boss might know...and he will go about his business the rest of his life unaffected. In the community where you will be prosecuting, not only will everyone know, they will never forget. That's why we have to be even more sure before we file a case."

    I suppose that a reform might be to require "clear and convincing" evidence, which would increase it from the probable cause standard and is a measure with which we are all familiar in the law.

    Roger,

    Disable and disarm is a tactic taught only in Hollywood. It is not, and has never been, a tactic employed by law enforcement. The science is fairly simple (from a police source, but not, I think, a contested issue):

    “Hands and arms can be the fastest-moving body parts. For example, an average suspect can move his hand and forearm across his body to a 90-degree angle in 12/100 of a second. He can move his hand from his hip to shoulder height in 18/100 of a second.

    “The average officer pulling the trigger as fast as he can on a Glock, one of the fastest- cycling semi-autos, requires 1/4 second to discharge each round.

    “There is no way an officer can react, track, shoot and reliably hit a threatening suspect’s forearm or a weapon in a suspect’s hand in the time spans involved."

    The same numbers illustrate why an officer does not fire a round, assess the results and then fire a second if needed. The lag time would make the second round either unnecessary or posthumous.

  16. Patrick Duffy 2014.12.16

    If a prosecutor proceeds by criminal complaint, there then is a preliminary hearing. This is a public proceeding. The legal standard is identical to the standard applied at the grand jury stage. For some cases, the public nature of a preliminary hearing might serve the interests of society better than a grand jury proceeding conducted behind closed doors. A good prosecutor will proceed publicly when circumstances warrant.

  17. Bill Fleming 2014.12.16

    Thank you again, gentlemen. I'm learning a lot here. I suppose it goes without saying that with cases as high profile as Ferguson, NYC and now Cleveland, given such high media coverage, the ubiquity of cell phone cams and other community based video devices, and the rapid dissemination across the internet via social media, the whole idea of confidentiality and secrecy is perhaps moot point. But I'll say it anyway. :-)

    What seems to strain credibility the most perhaps, for us non professionals, is the notion that there is not at least "probable cause" for an indictment in such cases, assuming that the prosecutor has given the grand jury a proper array of possible charges and sufficient instruction as to what those charges mean.

    I suppose my question to Mr. Vargo and Mr. Duffy is, why not take those cases directly to trial? What real purpose did the grand jury serve other than to exacerbate an already volatile situation?

    It may not BE a system breakdown, but to a great many citizens, it sure FEELS like one. And the demonstrations in the streets seem to be getting larger, not smaller. Thank heavens they are (for the most part) peaceful.

  18. Patrick Duffy 2014.12.16

    Trial? Easily said.

    Trials are expensive, particularly those done well.

    The average citizen has no idea of what is required to take a case to trial, how much it costs, the emotional toll it takes upon all involved. Insofar as "probable cause," pull a murder or manslaughter statute. Look at the elements, the basic building blocks of the crime itself. Therein lies the answer to whether "probable cause" might exist in a case charging a law enforcement officer with the criminal taking of a human life.

  19. Bill Fleming 2014.12.16

    Okay, good points, Mr. Duffy, but the "average citizen" also has no idea what his/her medical treatment costs, or in most cases what the diagnosis means.

    What they know is that they want to trust their doctors.

    Same goes for their police forces, and their judicial system. How much does civil unrest cost? And what's the "emotional toll" there?

  20. mike from iowa 2014.12.16

    Do we now put a price on justice for all? Sounds like the system is gamed towards those with money,like everything else.
    Trials are expensive so I guess the state needs to raise tax rates to defend people's constitutional rights to a fair and impartial judiciary.

  21. caheidelberger Post author | 2014.12.16

    Keep in mind, Mike, the "price" we're talking about is largely the price for the accused. Review Vargo's response: he's saying that the grand jury is a way for the state to make sure it's prosecuting the right person for the right crime. It may spare a defendant a costly trial.

    The way I'm hearing it described here, the grand jury is one more way to keep the state from putting innocent citizens in jail. Is Blackstone's Formulation relevant here: "It is better that ten guilty persons escape than that one innocent suffer"?

  22. Roger Cornelius 2014.12.16

    This is an intriguing conversation, thank you all.
    After I read Mr. Vargos's response to me, I did a little checking and learned I did use to wrong terminology in my comment about disarm or disable. The correct usage would be the police officers are trained to de-escalate and escalate situations.
    In light of the most recent shooting of unarmed blacks or blacks with air rifles, it seems obvious that law and enforcement escalated the situation rather than assess it.
    There is now a growing threat or backlash to these shootings that is expected to escalate, and that is groups attacking law enforcement because of the continues process of no bill from grand juries.
    There are a few states that are considering the requiring all police shooting to go to a special prosecutor. If policemen are public servants shouldn't the public have a right to know the full evidence that a grand jury has?

  23. Roger Cornelius 2014.12.16

    And now to Cory's point about Indians and the state and federal justice system in South Dakota. All federal cases on the reservation are prosecuted in Rapid City, Sioux Falls, Aberdeen or Pierre.
    As Mr. Vargo pointed out the cases are routinely handled by off-reservation grand juries and prosecuted by petit grand juries. It is hardly likely that neither the grand or petit juries will have any Indians on them. This is Not a jury of our peers as mandated by law.
    How can Indians expect to receive true justice with a system that has all white prosecutors, defense attorneys and juries that more than likely see brown and white?

  24. Deb Geelsdottir 2014.12.16

    I really appreciate the information offered by Mr. Vargo and Mr. Duffy. I know more now than I did before.

    Can the information presented at the grand jury be published online after they've reached their conclusion? I think that would be very helpful at assuaging public pressure.

  25. leslie 2014.12.17

    hey, just a heads u-AG jackley is gona give pointers to avoid fraud on NPR today. can't wait to compare the the tiny amount of info we've seen in his EB5 investigation

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