The Grand Jury System: Deshaun Watson is Not a Ham Sandwich

Instead of dodging linebackers and reading defenses, pro football star Deshaun Watson could have been facing felony charges with the announcement that a grand jury in Texas would hear evidence about allegations of sexual misconduct. Harris County District Attorney Kim Ogg subpoenaed a number of women who filed criminal complaints against the Houston Texans quarterback, who is also defending 22 different civil cases arising out of the alleged misconduct.

The former chief judge of the New York State Court of Appeals Sol Wachtler once quipped that “a grand jury would indict a ham sandwich, if that’s what you wanted.” His point was that the grand jury had morphed from a shield meant to protect the accused from abusive state power to a sword used by prosecutors to extract guilty pleas from defendants.

We now know that the grand jury didn’t indict Deshaun Watson. That will be the news that makes headlines. But with every grand jury voting to indict almost everyone, it’s clear that Deshaun Watson is the exception, not the rule.

Roots of the Grand Jury System

Currently, 48 states and the federal government require a grand jury to indict someone before they can face felony charges. This comes from the Fifth Amendment to the US Constitution. That amendment states that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

This grand jury requirement did not pass along to the states in the Fourteenth Amendment. That’s why Connecticut, Pennsylvania and the District of Columbia do not need to use grand juries for criminal indictments.

The Purpose and Secrecy of Grand Juries

The purpose of the grand jury, at least in theory, is to protect the accused. The grand jury process requires that a prosecutor convince a jury of the accused’s peers that there is probable cause to charge the accused with a crime. The prosecutor calls witnesses, recommends charges and introduces evidence to the grand jurors. Those grand jurors, in turn, can ask questions during the process. They then must vote in secret on whether to hand down an indictment based on the prosecutor’s evidence.

However, there is no judge or other impartial arbiter present during the entire process. That means there is no one to objectively make rulings on admissibility of evidence introduced. There is also no one around to answer questions on law raised by the panel of grand jurors. Instead, the grand jurors have to rely on the prosecutor or their own judgment to decide on these issues.

In addition, the entire process is secret, although a stenographer is present to record minutes of the proceedings. Nevertheless, the minutes themselves remain secret and sealed after the vote. So, the accused may never see the evidence the prosecutor used to obtain an indictment. The Jenks Act does permit the grand jury testimony of a witness to be provided to a defendant. But it only applies after the specific witness has provided direct testimony at trial. Most defendants never see the grand jury proceedings that led to their indictment.

Finally, the accused cannot be present at the grand jury and often isn’t even aware that he or she is a target of the grand jury proceedings. Even if they decide to appear before the grand jury, they cannot have an attorney present during the examination.

A numbers game…

Federal grand juries must contain between 16 and 23 members. In the federal system, 12 of the Grand Jurors must vote to indict for an indictment to be handed down. This means that a person could face an indictment for a federal felony on a bare majority.

But the one in Texas that decided not to issue an indictment against Watson consisted of only 12 members. District Attorney Kim needed to convince nine out of the 12 grand jurors in order to indict Watson. This is usually viewed as a fairly low hurdle for an indictment. But it proved to be one that prosecutors apparently couldn’t meet with respect to Watson.

Odds of conviction…

A few years ago, I had a client who had served as a foreman on a grand jury. He had agreed to serve the six months required for people called to be a grand juror. And, as a result, he had taken a leave of absence from his job. However, his assignment only lasted one case.

The prosecutor told the grand jurors that if they voted to indict the defendant, it would not be a hardship. The prosecutor claimed that the accused would still have all of his rights under the Constitution. And the prosecutor also emphasized that the person would still have the presumption of innocence.

After the prosecutor left the grand jury room, my former client explained what the prosecutor had neglected to tell them. He explained that the conviction rate was over 90% for someone who had been indicted. He also explained that the accused would face financial hardship defending the case, including possible loss of employment. Then, he said that each grand juror should vote and review the evidence carefully. When the vote came, the grand jury declined to indict. The prosecutor immediately dismissed my friend from serving on the grand jury.

This points to a key problem with the grand jury system. According to a Pew Research study, the federal government convicts more than 92% of people who grand juries indict, with the vast majority pleading guilty to the charges. Only two percent of all indicted defendants will actually go to trial. Of these, only 320 out of 79,704 total federal defendants win acquittals, as less than one percent of all federal juries return an acquittal. This means that if a person is indicted, it is highly likely that he or she will ultimately be convicted of a crime.

Misconduct…

Probably the biggest criticism of the grand jury system is that the element of secrecy often leads to prosecutorial abuses. There is no judicial supervision, so prosecutors can and do bend the rules from time to time. And, since judges rarely have to review grand jury minutes, no one usually ever catches the errors and omissions of the prosecutors.

Federal Rule of Criminal Procedure 6 permits defendants to file a motion to dismiss an indictment. However, this is truly a shot in the dark for the defense team. That’s because they are not privy to the grand jury minutes and have to hope that the judge will take the time to review them in adjudicating the motion to dismiss the indictment.

In People v. Ehrlich, for instance, Judge Marie G. Santagata dismissed an indictment in the high-profile Wedtech case because the grand jury proceeding was defective. (Full disclosure: I clerked for Judge Santagata during the summer of 1987 and worked with her and her law clerk on this matter.)

The grounds for the dismissal were twofold. First, the prosecutor presented “highly prejudicial, inadmissible evidence of other crimes.” Second, “the legal instructions to the Grand Jury were so inadequate and misleading that the integrity of the Grand Jury proceeding has been impaired.”

The defendants had filed a motion to dismiss the indictment as a matter of course. And they were fortunate that the judge on the case took the time to review the grand jury minutes before ruling on the motion. Basically, a defendant challenging an indictment has to fly blind and rely on the good will of the judge in the case.

Grand Juries and Ham Sandwiches

The grand jury system has been abused by prosecutors, allowing them carte blanche to gain indictments. This, in turn, leads to easy convictions. That’s because more than 90% of defendants end up pleading guilty at some point during the trial process.

This is troubling, as the Constitutional requirement for a grand jury indictment was originally intended as a check on prosecutorial abuses. Instead, prosecutors have taken advantage of the secrecy of the grand jury system and the lack of judicial oversight.

This is why Judge Wachtler made the quip about ham sandwiches and mused about doing away with the New York State grand jury system altogether. Ironically, Wachtler himself eventually turned into deli meat, too. A federal grand jury indicted him in 1993 for extortion. He ultimately pleaded guilty and served 15 months in a federal prison.

Deshaun Watson is lucky enough to say the opposite. Deshaun Watson is one of the very few out there who didn’t become the proverbial “ham sandwich” to be indicted by a grand jury. But almost everyone else involved in a grand jury proceeding won’t be lucky enough to say the same.