Scene from a Novel, Grand jury appearance, Affirmative Action

What would a work of crime fiction be without conflict with or within the legal system? Affirmative Action has it in spades. Jonathan Tyne is charged with two counts of capital murder, manslaughter and reckless endangerment (a form of manslaughter) so his attorney’s first order of business is to get those charges dropped. He succeeds with the murder charges but not the two manslaughter charges. He manages to get Tyne released OR but the price includes Tyne agreeing to appear before a grand jury. Tyne wants to appear, against his attorney’s advice, because he thinks he can make his legal problems go away by telling the grand jury exactly what he did. Unfortunately, to appear he must waive the limited transactional immunity extended to grand jury witnesses. In other words, anything he says can be used against him at trial if he is indicted. For this reason most witnesses facing criminal charges either refuse to sign that waiver, refuse to appear or if subpoenaed rely on the Fifth Amendment to avoid answering potentially incriminating questions. Thus, most witnesses facing criminal charges never see the inside of a grand jury hearing room. In California v. Jonathan Elliot Tyne, the Assistant District Attorney presenting the case for indictment believes getting him to testify will make prosecuting him a slam-dunk. What she does not know is how well he has been prepared. Later in the story Tyne again needs representation when he is questioned, as a ‘person of interest,’ in a triple homicide.  So, the story has loads of legal fireworks.

I’m not an attorney, so of course, my writing about the legal system, lawyers and grand jury procedure is based on my research. We all can’t be Baldacci or Grisham, but we can do our homework. I believe I have but my knowledgeable readers will point out my errors and omissions. I welcome this feedback.

You may be wondering where I got the idea to write the confrontation between Tyne and ADA Sullivan. Phillip Friedman wrote a marvelous novel, Grand Jury, in which he mentions his protagonist’s annoyance at a practice common in New York grand juries. When a grand juror wishes to ask the witness a question she raises her hand to get the attention of the ADA presenting the case. They then have a whispered conference outside of the witness’ and the court reporter’s hearing. The ADA than asks the question, often paraphrasing it, but only if she thinks the question is relevant. Read that last sentence to mean: only if she thinks the answer to the question will help rather than hinder getting an indictment. Friedman narrates this tantalizing bit of information in the POV of his protagonist. I decided this was the perfect literary mechanism for Tyne to tell his story. He’s been well prepared by counsel who has warned him the questions he needs to be asked won’t be asked. So, here’s to you Mr. Friedman; you wrote a great book and I thank you for the idea.

This particular grand jury represents Alameda County, California where that practice may or may not be in use. It is discretionary. Each ADA is free to manage a grand jury panel as she wishes, assuming no juror or witness has the stones to oppose her. I rely on the fiction writer’s Bill of Rights to invent whatever literary devices serve my purpose – telling a great story. However, please feel free to join the discussion and tell me where I’ve gone astray.

For your reading pleasure, Tyne confronts ADA Elizabeth Sullivan before the grand jury…

They broke for lunch at 11:30.  Tyne asked and the bailiff told him they would resume at 1 P.M.  Hardin had left to attend to some other legal matter so Tyne rode the elevator down to the ground floor and walked around the courthouse until he found a small delicatessen with a few tables and chairs in front.  He ordered a sandwich, ate it alfresco, then wandered around until he found a Starbucks.  At 12:55 he was again sitting outside jury room #3.

At about two the big bailiff approached Tyne and handed him a document.  Hardin had returned, looked at it briefly and said, “That is the waiver of limited transactional immunity I told you about.  They want you to sign it which means ADA Sullivan has decided to call you.”

“You read it and if it is exactly what you expect it to be, I’ll sign it.”

Hardin read it quickly and said, “It’s a standard waiver, nothing unusual but I still believe you are making a mistake.  If you sign it I’ll get a copy from the clerk.”

Tyne took out a pen and signed the document on its last page without commenting or reading any of it.  The bailiff accepted the document and his only reaction was a raised eyebrow and a slight shake of his head.  At exactly three the door to the hearing room opened and the same bailiff, the huge black man, stepped into the hall.  “Mr. Tyne, they’re ready for you.”

Tyne stood and approached the man who stopped him with an upraised hand and said, “I have to pat you down.”  Tyne spread his arms and the officer expertly went over him.  He then opened the door and held it open for Tyne, and as Tyne passed him he said, “Good luck man.”  The other bailiff directed Tyne where to sit and one of the jurors Tyne assumed was the foreman from what Hardin had told him about Grand Jury procedure swore him to tell the truth, the whole truth and nothing but the truth, then asked him to state his full name.  Tyne recognized ADA Sullivan from the previous day’s session with the photo array.  She was leaning on the edge of a table with her arms crossed over her chest.  She picked up a document from the table, walked up to Tyne and handed it to him and said, “Mr. Tyne, do you recognize this document?”


“Please tell the grand jurors what it is?”

“It is a waiver of transactional immunity.  It contains my signature on the last page.”

“Do you understand that by signing that document anything you say before this grand jury may be used against you in a court of law?”


“Did you sign it willingly?”


“Was any pressure put on you, by anyone, to compel you to sign that document?”


“Were any promises or inducements made to you to persuade you to sign it?”

“No, the decision to testify before this panel was voluntary and I was promised nothing in return for my testimony.”

“Are you aware that before being allowed to testify here today you had to execute that document?”


“Have you consulted an attorney concerning the ramifications of waiving your right against self-incrimination by signing that document?”

“Yes, I have.”

“And do you now affirm that it is your desire to testify before this panel and reaffirm the act of waiving your right against self-incrimination as reflected by your signature on that document?”

“Yes, I want very much to testify here today.”

“Thank you,” and she held out her hand for the document and walked back to her table.  Then she said, “Mr. Tyne, this grand jury has heard from several expert witnesses who have argued persuasively that your acts at the restaurant Café Italiano Pietro on the night of March 25th, however commendable in general, in certain specifics were not justified by the facts nor permitted under the law.  Accordingly, they are very close to voting a true bill of indictment against you for the crimes of manslaughter and involuntary manslaughter.  As a courtesy to your attorney and to you, they have agreed to hear whatever statement of mitigation from you that you care to make.”

“Mitigation?  There is absolutely nothing I did that requires mitigation.  I didn’t come here today to make a speech; I came here to answer any lingering questions you or they might have concerning what I did with the expectation that I would be exonerated.  And it is very reassuring to hear that the state has found expert shooting witnesses who are able to render opinions concerning a shooting without ever talking to the shooter.”

“Mr. Tyne, we have a video of that shooting and it speaks for itself.”

“As illuminating as that video is, aside from its grotesque entertainment value, it is factually flawed in at least three respects and therefore it is categorically impossible for it to be a complete factual record of the shooting.  And for the record, I am not suggesting that in extracting that portion depicting the shooting from the 48-hour video stream the content was adulterated but I am saying that what you don’t see may be just as important as what you do, perhaps more so.”

ADA Sullivan stared at Tyne and said nothing.  The seconds passed and Tyne returned her stare unwaveringly until a male juror with gray hair and a thick gray mustache sitting in the first row raised his hand to ask a question.  Sullivan conferred with the man and then she said, “Mr. Tyne, a grand juror wants to know what it is about the video they were shown that you believe is flawed?”

“Can’t he ask his question directly?”

“He can but we prefer to hear the question before it is put to the witness.”

“So that you can modify it to suit your own agenda?”

“So that it can be put to the witness in a legally correct manner.”

Tyne paused to give dramatic weight to what he was about to say.  He’d got the idea for the confrontation he was about to initiate with the lawyer from insights he’d gleaned from his discussion of grand jury procedure with David Hardin and he hoped he wasn’t going to get his head handed to him.  “Ms. Sullivan, I don’t wish to appear argumentative but this isn’t a trial, is it?”

“No, it isn’t a trial.”

“Is a transcript being made of what is said in this room?”

“Yes, grand jury testimony is secret but we make a transcript because there’s always a possibility the jury will hear perjured testimony.”

“And if I understand correctly, your job is to explain the law to the grand jurors?”

“Yes, and to supervise these proceedings.”

“And of course to get an indictment?  That is your objective, is it not?  In fact, we would not be here if you were not already convinced I committed a crime?”

“Yes, I believe you have committed several.”

“Is it fair to say that you are the attorney for these jurors?”

“Yes, and of course I represent the state of California.”

“Of course.  Ms. Sullivan, who represents me?”

“You may consult with counsel if you so choose.”

“But my counsel may not speak in my behalf, is that not correct?”

“Yes, that is correct.”

“So which person or persons in this room are looking for truth?   It can’t be you since you just got through saying you believe I’ve committed several crimes and you are seeking an indictment?”

“The purpose of a grand jury is to find truth in so much as it can.”

“By listening to answers to questions you put to witnesses?”


“But your mind is already made up so you are unlikely to ask any question that might interfere with obtaining an indictment?”

“Any grand juror may ask the witness a question.”

“But only if you approve the question and translate it into a legally correct manner.  Isn’t that what you said?”

“Is there a point to this time-wasting digression especially since you said you didn’t come here to make a speech?”

“The point I am trying to make is that your mind is already made up so in your zeal to obtain an indictment you are the last person in this room seeking the truth.  In fact, did you not tell my attorney David Hardin that you believe my military service almost thirty years ago, the character of which according to my DD-214 was honorable, uniquely qualifies me for executing mob contracts?  That I like to work six months of each year as a consultant, January thru June and take six months off and you think I’m most active, as a mob assassin, in the second half of the year?”

“That conversation, if it occurred, was at a point of time in the investigation when very little for certain was known about what actually happened during the shooting.”

“But as you just said, you have a video which speaks for itself.  You made that statement to my attorney after you had a chance to study the video.  Didn’t you also tell my attorney during that same conversation that if you watch the tape it is impossible not to reach the conclusion that I am very well suited to life as a hit man?”

“Whether I did or did not is irrelevant.  The reason we are here today is because of what is on that video.  The investigators may have said some things early on in haste, that I may have repeated, that proved not to be true but there is no gainsaying what is on the video and the testimony that has been taken today from previous witnesses.”

“But you were wrong before based on what you saw or thought you saw on the video and you are obviously giving the video too much weight so you are wrong now.  You have also displayed bias and it’s likely your bias has subtly, or not so subtly influenced these jurors to think the way you do.  Also, you have ignored glaring omissions on the video and missed a key piece of exculpatory evidence that is on the video.  So either you and your investigators are incredibly incompetent or you are maliciously biased and will do and say anything to get an indictment.  Which is it?”

He didn’t expect an answer and he didn’t wait for one.  “I suggest in the search for truth, especially where the possibility of bias exists, there is no such thing as a legally incorrect question especially since as you said, this is not a trial so trial procedure does not apply.  And I further suggest that the only persons in this room interested in truth are these grand jurors, certainly not you since out of your own mouth you have asserted my guilt without ever having spoken with me, so their questions, however inelegant or non-lawyerly they might be are designed to illicit truth especially the truth you may not wish them to hear if it makes getting an indictment less likely.  I should think each grand juror would like to hear, in his or her own words, any questions his or her colleagues are wondering about.  I would think it is also pertinent that their questions appear in the transcript exactly as they ask them and if you rephrase or paraphrase a grand juror’s question, that should be in the record too.  How else can the legal system supervise you since there is no judge in this room to see that you do not overstep your authority?”

“I’ll simply reiterate that I prefer to hear a grand juror’s question before it is put to a witness to insure the question is relevant and bears on the issues of law or facts being presented to the grand jury.”

“In other words, Sullivan’s rules for Grand Jury procedure, to turn the search for truth in the only venue in our legal system where it occurs into a trial where it does not.  I’m curious; does it say that in the pamphlet given to these jurors when they were empaneled?”  Tyne had been looking at Sullivan throughout this exchange and for the first time he looked at the grand jurors.  To Tyne they all, or at least those nearest to him whose faces he could see clearly, were following the discussion closely and he thought he heard a snicker when he mentioned Sullivan’s rules.

“It’s the way we insure an orderly hearing process.”

“Another example of process taking precedence over simple truth.”

“You don’t have to answer the question.  You may refuse to answer any question you feel might incriminate you.”

“You don’t get it, do you?  I will answer any question you or they ask, truthfully and completely; I’d just like to hear the question in the man’s own words.”

“You just did.”

Tyne stared at her for a few seconds, nodded and smiled and turned slightly in his seat to face the gray haired juror directly and spoke to him, as if he were the only person in the room.  “Thank you, it was becoming increasingly obvious that Ms. Sullivan was not going to ask that question and I was beginning to wonder whether any of you would.  The question was: what was it about the video you jurors were shown that I believe is flawed?  First, there were dead zones that were not within the viewfinder and crucial actions were not recorded.  Second, the camera was mounted behind and to the side of the cash register, high up and close to the ceiling, so it could not possibly have recorded what I saw.  And finally, it could not possibly record what I was thinking when I fired.  However, I am here now, ready and willing to answer any questions that she or you might have.”

“What you were thinking, your intent as it were, isn’t relevant since I have stipulated that you believed your life was in danger and you acted solely to save your life.  That being the case, your actions are being evaluated against the reasonable man rule.  These jurors are simply being asked based on what they have seen in the video and testimony taken from eyewitnesses to the shooting whether what you did was reasonable in the context of that rule.  I hope your attorney advised you of the legal concept of the reasonable man?”

“Yes, he did.”

Another juror, a woman, raised her hand and Sullivan said, “Go ahead and ask your question directly, so that Mr. Tyne cannot say I am manipulating this hearing to suit some hidden agenda.”

She said, “What was it you saw that made you shoot Tommy O’Meara?”

* * *

Sorry, that was a teaser, to get you to join the discussion.


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