James Bain was convicted of kidnapping and rape of a 9 year-old boy in a field back in 1973. The DNA testing of crime scene evidence used to free him had not yet been developed. Bain’s conviction relied heavily on eyewitness identification, although the then 19 year-old Bain’s alibi contradicted the account of his accuser. Ex-prosecutor Ed Threadgill, who tried Bain’s case, expressed his regrets and said to the Associated Press "the whole system is set up to keep that from happening. It failed."
I’d like to agree with prosecutor’s assessment, but after sitting on a grand jury myself a few years ago, I would have to conclude that justice is not blind. It is no accident that of the 264 people freed so far by the efforts of the Innocence Project and DNA testing to exonerate them, 149 of them have been African American.
How do we end up locking up so many people who did not commit the crime for which they were accused?
The old saying "you can indict a ham sandwich" is not far from the truth. All you need to sustain an indictment is probable cause. In Florida, the threshold for the number of jurors needed to bring an indictment is twelve, which is even lower than the sixteen people required to indict someone here in Georgia in order to bind a case over to superior court.
Although these juries are impaneled by a judge, the court plays virtually no role beyond the selection process. For all practical purposes, this body relies heavily on the district attorney’s representative for guidance. Our group elected a slate of officers. I was selected foreman. The district attorney’s representative gave us a crash course on procedure for an hour. He explained the difference between finding a true bill or no bill.
After lunch, we heard our first case.
We heard sixty to seventy cases twice a week. The grand jury foreman’s signature was required on each document. I flipped through each of them after scrawling my name across the front page, scanning the names, ages and addresses of the accused. Seeing the words “black” and “male” over and over got to be demoralizing, but the circumstances under which many of these young African American males had been arrested left the panel no choice in many cases but to vote for a true bill.
It was surprising to me, given the advances in gathering and analyzing forensic evidence, how much of the indictment process depended on an officer’s ability to tell a convincing story when there was a paucity of facts.
Whenever our panel was unclear on the facts of a case, and stopped the proceedings in order to have a discussion among ourselves, the district attorney’s representative got testy, as if our deviation from the rhythm of listening to the charges, hearing the testimony, and immediately having a vote without any deliberations was itself a crime.
The longer I listened to testimony, the longer I read through the indictments, the more I became convinced that a lot of these charges were being brought against the accused because they had no legal counsel to intervene in the process before it got this far. They had no advocate to ask the DA for a plea bargain deal in the kind of legal language the DA and his staff understood.
Far too many of the cases in front of us had begun as misdemeanors, escalated to felony charges because the accused had resisted arrest, a subjective charge that I learned depended a lot on the officers perception of the alleged perpetrator's attitude at the time of arrest.
But it was not until the day panel members shook off their lethargy to "consider what this kind of thing could do to their future" of an accused from the Atlanta suburbs that I understood the real power of our body to alter the course of a person's life.
Even though the African American crime rate in America is higher than that of any other ethnic group, the underlying premise of the criminal justice system is the idea that each individual, whatever his ethnicity, will be judged by his or her own actions, not the actions of others whom they may resemble. In spite of all the cases that our panel no billed, or asked the prosecutor to reconsider with a lesser charge, I was never certain that we’d listened hard enough or asked enough questions to make sure that every citizen whose lives we were about to affect got the same level of consideration. Because I knew how hard it would be, once the accused was indicted, for them to have even half a chance of navigating the complexities of the criminal justice system without a well-trained legal advocate.
By the time those two months were over, I felt as if I’d stamped the label "felon"on the lives of hundreds of young black men here in Georgia. Whether or not any of them will turn out to have a story similar to James Bain or the other 249 people released by the Innocence Project remains to be seen.