Judge gives grand juror the boot
By Linda Bentley | July 23, 2008
Asking too many questions?
PHOENIX – A state grand juror, who we’ll refer to as GJ-X to protect the juror’s identity, called last week claiming to be abruptly booted off a grand jury after a month of service by a trembling, shaking Superior Court Judge Anna Baca, who told the juror, “You’re dismissed.”
When the juror asked, “Am I dismissed for the day?”
Baca barked back, “No, you’re dismissed forever,” admonishing the juror by saying “absolutely nothing” that just took place was to be repeated.
When Sonoran News asked the reason for the abrupt dismissal, GJ-X responded, “I wasn’t given any reason or cause. And, when I requested related paperwork directly from the judge in front of a court reporter in a waiting room – a mini mock court outside of the courtroom – it was denied.”
Due to grand jury secrecy, jurors can’t disclose any specific details of the grand jury proceedings.
“However,” said GJ-X, “the jurors, taking a cue from the prosecutor's feigned urgency to move a case along, would skip serious, careful deliberating, and sign a true bill ... just another rubber stamp.
"The prosecutor and other jurors were annoyed with the questions I would fervently ask the state's only witness, seeking another side of the story for the accused. Due to this probing, the prosecutor's cases and charges became like the desert's shifting sand they were blowing away without probable cause left to support the charges.”
The state grand jury panel consists of 16 jurors and requires a vote of at least nine to indict. It convenes twice a week for four months and hears 20 cases per day.
While considered an arm of the court, the grand jury not only has the authority, but an obligation to act independently of the court and prosecutor. And, when grand jurors vote for indictment, they are afforded the same immunity as judges.
Prosecutors, on the other hand, are afforded no such consideration, as evidenced by the May 2004 disbarment of former assistant Pima County attorney Kenneth Peasley for intentionally eliciting false testimony in a 1993 capital murder case and again in the 1997 retrial.
Arizona Supreme Court Justice Micheal D. Ryan wrote, "A prosecutor who deliberately presents false testimony, especially in a capital case, has caused incalculable injury to the integrity of the legal profession and the justice system."
According to Arizona Rules of Criminal Procedure 12.1(d)(4), “Grand jurors are obliged to return an indictment only if they are convinced that there is probable cause to believe that an offense has been committed and that the person under investigation committed it.”
The U.S. Attorneys Manual states, “In dealing with the grand jury, the prosecutor must always conduct himself or herself as an officer of the court whose function is to ensure that justice is done and that guilt shall not escape nor innocence suffer … the prosecutor must do nothing to inflame or otherwise improperly influence the grand jurors.”
In 1985, former New York Court of Appeals Judge Sol Wachtler said, “Any prosecutor who wanted to could indict a ham sandwich." That was seven years before he was indicted on sexual harassment charges.
The Journal of Criminal Law and Criminology, published by Northwestern University School of Law, addressed that very issue in a 1974 Journal by Robert Gilbert Johnston titled, “The Grand Jury – Prosecutorial Abuse of the Indictment Process.”
Johnston wrote, “From its inception in the United States, the grand jury has been regarded as security to the accused against oppressive persecution and as protector of the community against public malfeasance and corruption. Nevertheless, it is now the subject of considerable controversy. Critics of the grand jury argue that is inefficient, expensive and unnecessary,” which he noted came during a time when public officials were being scrutinized for their conduct.
In March, Maricopa County Superior Court Presiding Judge Barbara Rodriguez Mundell designated Baca “to impanel and administer” the 63rd State Grand Jury. Nowhere in the memorandum did it say “preside.”
Jurors must be sworn in with, “I swear (or affirm) that I will give careful attention to the proceedings, abide by the court’s instructions and decide matters placed before the grand jury in accordance with the law and evidence presented to me (so help me God).”
The judge must also “inform the grand jurors: (1) of their duty to be present at each session of the grand jury; (2) of their duty to inquire into every offense presented pursuant to law; (3) of the duty of each grand juror to disqualify himself or herself in a particular matter of any of the reasons enumerated in Rule 12.2; (4) of their duty to return an indictment only if they are convinced that there is probable cause to believe that an offense has been committed and that the person under investigation committed it; (5) of their right to request the presentation of additional evidence by the prosecutor; and (6) of those grand jury matters which are confidential and the penalties for wrongful disclosure thereof.”
GJ-X claims the grand jury “was not exactly re-enforced to follow instructions, and often floundered on what exactly their role was. Even a court reporter got into a jam with jurors about how they were to handle deliberations.”
Persons disqualified from serving on a grand jury include: witnesses in the action, those interested either directly or indirectly in the matter under investigation, those who are related or closely connected to either of the parties to the action or proceedings, and persons biased or prejudiced in favor of either the state or the defendant.
Rules state the grand jury “may be challenged only on the ground that the grand jurors were not drawn or selected according to law. An individual grand juror may be challenged on the ground that the juror is not qualified to sit on the grand jury or on the particular matter at hand.”
The foreman may request the court initiate a contempt proceeding against any person for conduct which violates the rules or disrupts the grand jury proceedings.
Challenges to a grand juror must be made in writing and, only if the challenge is sustained, the juror shall be discharged or excluded from deliberations on the particular matter at hand.
According to the juror, none of the grounds for disqualification applied, and if a challenge was initiated, GJ-X was not privy to that information.
“Although I was thanked by one prosecutor for my questions to witnesses, which apparently helped him nail his case shut,” said GJ-X, “another stood by and listened while I was dismissed by Baca.”
GJ-X said, “To understand how this official dysfunction works, ham sandwiches are indeed indicted, often based on statements by alleged witnesses or anonymous tipsters. It’s our duty to vote ‘no true bill’ when the evidence doesn’t support it.”
Photo Caption: Judge Anna Baca