Daniel Lee Kleinman: Grand jury duty leaves uneasy feeling

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I completed more than a year of service on a federal grand jury in Madison last fall.

And now, as I prepare to discuss the classic jury film "Twelve Angry Men" starring Henry Fonda in the course on democracy I teach at UW-Madison, I've been thinking about my experience quite a bit.

No less a pillar of democratic theory than Alexis de Tocqueville has sung the praises of jury duty. Citizens acquire "the habits of the judicial mind" through jury service. We learn, according to de Tocqueville, "equity in practice."

Does grand jury service play a similar role?

In criminal trials, conviction depends on determining guilt beyond a reasonable doubt, and the trial structure is adversarial. Jurors must consider the arguments from both sides. And in the best case, when jurors deliberate, they press one another to examine the issues at stake from many different perspectives.

On federal grand juries, by contrast, issuing an indictment depends only on finding probable cause of guilt. What is more, grand jurors do not hear from the defense. Only the views of the government are presented. The standard of probable cause and the absence of an adversarial process mean that jurors are not encouraged to view each case from many different vantage points.

In my time on the grand Jury, a wide array of cases came before us - drugs, guns, fraud, child sexual abuse, immigration. Often in drug cases, prosecutors presented testimony from confidential informants or undercover cops. Other times, the assistant U.S. attorney in charge of a case provided evidence from legal searches or car stops.

These forms of evidence were fairly compelling.

However, one case we heard - and the decision at which we arrived - made me uneasy.

It was a conspiracy case. In my mind, there were a large number of possible explanations for the targets' behavior, and I was not persuaded an indictment was appropriate.

Initially, my fellow jurors were similarly unsettled by the presentation of the evidence. We asked for a sharper presentation of the case, and an assistant U.S. attorney provided it to us.

Although my fellow jurors were swayed, I struggled with the prospect that the indictment would be used to pressure the targets to settle or implicate others as a way to avoid long prison time. It struck me that the U.S. Attorney's Office might be using our work in a coercive manner.

My fellow jurors said they were convinced there was probable cause. But I wondered if an assumption of guilt - rather than innocence - guided my fellow jurors' thinking.

This view was reinforced by comments from one juror about the need to get criminals off the street. Comments by another juror supported my hunch here. He expressed sympathy for immigration officers who catch illegal immigrants only to find that those immigrants re-enter the United States just days later.

When my class discusses "Twelve Angry Men," I will tell my students that I valued the opportunity to participate in a mainstay of constitutional government. But I cannot tell them that grand juries instill de Tocqueville's "habits of the judicial mind." I cannot tell them that my fellow jurors and I learned that crucial democratic skill - deliberation.

Deliberation requires hearing conflicting points of view, extended discussion and argument. Instead, we were prompted, I fear, by the nature of the grand jury process, to identify with the government.

Kleinman is a professor, chairs the Department of Community and Environmental Sociology and directs the Holtz Center for Science and Technology Studies at UW-Madison.

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