Grand juries serve justice in secret

Jennifer Chambers
The Detroit News

They have a person’s life in their hands. Their decisions are made behind closed doors. They take an oath of secrecy in their work.

And without them, massive public corruption cases would not come to light in Metro Detroit because grand juries are powerful tools used to build investigations, compel witness to testify and bring forward evidence when prosecutors cannot do it alone.

Yet the grand jury system — which involves a group of 23 citizens who meet in secret inside the federal courthouse in Detroit to decide the fate of those suspected of criminal wrongdoing by the government — is a mystery to most.

In state courts across Michigan, prosecutors file criminal charges against a suspect. In the nation’s federal district court system, a panel of citizens called grand jurors make that crucial first decision.

They gather inside a small room on the fifth floor at Detroit’s federal courthouse, hear evidence brought by prosecutors and decide whether members of the community, from public school principals to violent gang members, face felony criminal charges in the form of an indictment.

Grand juries in Detroit have handed down indictments for notorious defendants: Disgraced former Detroit Mayor Kwame Kilpatrick, oncologist Dr. Farid Fata, Nigerian underwear bomber Umar Farouk Abdulmutallab and violent gang members.

More typically, they make decisions in cases about bank robbery, assault or illegal gun possession.

U.S. District Judge Bernard A. Friedman said a grand jury is a right guaranteed under the Fifth Amendment of the U.S. Constitution and acts as a check and balance on the executive branch of government, which handles criminal prosecutions.

“Most members of the public don’t understand how important the check and balance of the grand jury is. I tell them if this was your loved one, wouldn’t you want the grand jury to be the buffer between the executive branch of government?” Friedman said.

A Detroit grand jury is selected at random from lists of registered voters from nine counties in southeastern Michigan, from Sanilac County to the north to Jackson County to the west. The chief judge of the federal court decides whether any can be excused.

Once 23 members have been selected, a foreperson is chosen and all members of the grand jury are sworn in.

In Detroit, grand jurors generally serve four days per month for 18 months. In rare cases, terms are extended. They are paid $40 a day. After 45 days of service, the pay is $50 a day.

The grand jury’s job, after hearing all the available evidence, is to decide whether probable cause exists to believe a crime has been committed and the person being investigated committed the crime, Friedman said. They do not determine guilt or innocence.

Evidence inside the grand jury room is presented only by an attorney for the government, but the grand jury can ask the government to investigate further and has the power to subpoena witnesses and documents, Friedman said.

“Their powers are great. Grand juries have investigatory powers. They can investigate crimes and oftentimes they do,” Friedman said. “In public corruption, (prosecutors) know it’s happening, but the government needs documents and testimony. They go to the grand jury who will do that investigating.”

After it has received evidence in a case, a grand jury must decide whether to hand up an indictment, which is a formal criminal charge. If they decide there is no probable cause, the grand jury will return a “no bill.”

Sixteen members of the grand jury constitute a quorum for any type of work such as hearing evidence or a vote. After deliberating, grand jurors will take a vote. Twelve or more members are needed to request an indictment.

Miriam Siefer, chief of the Federal Defender Office in Detroit, said the grand jury is an important right people have under the Constitution.

“But the fact of the matter is any able prosecutor can get any grand jury to return an indictment. It’s not the same type of screening tool that a state preliminary examination serves,” Siefer said.

In state court, once someone has been charged by a state prosecutor, they have a right to a hearing where a judge determines if there is probable cause and the case should proceed to trial or be dismissed.

“In state court, (suspects) have representation and cross examination. In federal court, you have a closed hearing where a group of citizens hears evidence and there is no challenge to the evidence presented,” Siefer said.

The state preliminary exam can be weed out weak cases, Siefer said, while in federal court, nearly all cases proceed to trial where a trial jury decides one’s fate.

“It can result in people being overcharged. It can be problematic and it can be subject to abuse,” Siefer said of the process, “But I have not recently seen the filing of motions alleging prosecutorial misconduct.”

In 2015, grand juries in Detroit handed down 396 indictments against 553 defendants. Typically, there are four to five active grand juries at work in the courthouse, officials said.

The government’s public corruption case against Kilpatrick in 2010 was built by a grand jury, said U.S. Attorney Barbara McQuade, because it was able to subpoena witnesses who were reluctant to speak to the FBI on their own.

“People are afraid to provide information to law enforcement. We give them a subpoena and they may not testify. If the FBI comes, they can say no,” McQuade said.

But a subpoena from a grand jury cannot be ignored because it is an order of the court. Doing so can land someone in jail.

The grand jury in Kilpatrick’s case spent 21/2 years listening to hundreds of witnesses and examining mountains of evidence.

Kilpatrick, 46, is in El Reno Federal Correctional Institution in Oklahoma City, serving 28 years after his 2013 conviction for racketeering and other charges during his term as mayor.

McQuade said it’s rare for a grand jury to not return an indictment, but it does happen on occasion. McQuade said her office does not keep statistics on the issue.

“They’ll say we want more evidence. It’s rare for an outright rejection. It should be rare. Before we get (to the grand jury), the assistant U.S. attorney and the federal agents have reviewed it. If we get there and they aren’t satisfied probable cause was found, we have done something wrong,” McQuade said.

The federal government investigates a lot of charges that don’t come to fruition, McQuade said, and the secrecy of the grand jury protects the reputations of those who are not charged.

In cases where no indictment is handed down, prosecutors may charged someone in an “information” or criminal complaint. But anyone charged must waive his or her right that evidence first be presented to a grand jury.

“I think there is real value to the grand jury process. It brings a vigor to our work to know you have to present to people who will poke holes in it and challenge you about it. It will be better before a (trial) jury since it’s been vetted by a grand jury,” she said.

In one infamous criminal investigation in Metro Detroit, the grand jury issued no indictment despite calling dozens of witnesses, including mob figures.

Six weeks after former Teamsters president Jimmy Hoffa’s disappearance in 1975, a federal grand jury was empaneled in Detroit.

Despite a parade of more than 50 witnesses, including one who was jailed for not cooperating, there wasn’t enough evidence for an indictment or charges of any kind.

Detroit attorney Harold Gurewitz, a former federal court prosecutor, said the anonymity of the grand jury allows the grand juror to do work without fear.

“Because there is a necessity to have grand jury, it’s important the process remains secret so (grand jurors) don’t have to feel like they are going to be contacted. It might make people concerned,” Gurewitz said.

Arthur McCoy, an assistant jury administrator for the federal courthouse in Detroit, said the time commitment is initially difficult for all grand jurors, but an overwhelming majority leave not only with a sense of civic duty but also an interesting experience.

“In the beginning, nobody wants to be here. Once they get here and see what they are doing, they enjoy coming down there. I’d say 95 percent of people would do it again,” McCoy said.

Typically, once a grand jury has voted to indict, a single foreperson brings an indictment to a magistrate judge for the court to process and start a case.

In the Kilpatrick case, all 23 grand jurors appeared before the magistrate to hand down the indictment.

Indictments for high-profile defendants like ex-Mayor Kwame Kilpatrick have been handed down from grand jury rooms like this in Detroit’s federal courthouse.

U.S. District Judge Gerald E. Rosen was the chief judge at the time and had the responsibility of discharging the grand jury.

In what he called an exit interview, Rosen said grand jurors told him of their experience during the two-and-a-half-year term they served to return a massive indictment that brought down Detroit’s highest ranking city politician.

“I was so struck by their level of their commitment and dedication to their work. Several said they felt this was the most important thing they had done in their lives,” Rosen said.

And they felt so strongly about what they had done and what they were doing that all decided they would go and return the indictment, Rosen said.

“They were heroic, in my view. The FBI got their kudos as they should have, the U.S. Attorney, too. There hadn’t been much focus on the grand jury. They were the heroes,” he said.