YOUNGSTOWN — Although most people are aware that a county grand jury is a panel of citizens who periodically release a list of people whom they have indicted, usually for serious crimes, many people would be hard-pressed to explain exactly what a grand jury is or why it exists.

Some people may know that if they are registered to vote, they might be called to serve on a county grand jury. And they might know that the work of grand juries is done in secret. But few might know that in Mahoning County, the nine people and several alternates who serve as grand jurors meet once a week for four months to decide who will be indicted. Then a new panel is chosen for the next four months.

Mahoning County Common Pleas Court Judge R. Scott Krichbaum, the longest-serving of the county judges at 34 years, had the duty last week to swear in a new panel of grand jurors and to explain their duties to them. Among the things he explained was how the decision of a grand jury in England in 1681 set the tone for the grand jury system in use in much of the United States today.

He began by explaining that when the grand jury assembles each week, they will be guided mostly by Mahoning County Assistant Prosecutor Rob Andrews, who will present witnesses and cases to them.

“As a grand juror, it will be your primary duty to determine whether there is sufficient evidence to charge a person with a crime,” Krichaum said.

If there is, the person will be indicted. After that, the indicted person proceeds to hearings at the Mahoning County Courthouse. Typically, a person enters into a plea agreement or has a trial. Sometimes charges are dismissed.

Krichbaum spoke of the difference between a grand juror, whose work is done in private, and the other type of juror, “like you see on TV,” called a “petit juror,” who judges the guilt or innocence of a person charged with a crime in a public courtroom, Krichbaum said.

FINAL YEAR AS JUDGE

Krichbaum, who has one year left in his final six-year term as common pleas court judge, then introduced the court reporter and explained her role in the grand jury process and introduced Joe Iberis, a former Mahoning County sheriff’s deputy, “who I have chosen to be the foreman of the grand jury,” Krichbaum said.

The judge in charge of each grand jury — in this case Krichbaum for the next four months — is “empowered to select a qualified elector in the county to be foreperson of the grand jury,” Krichbaum said.

“It’s my choice because he is a man I have known for 35 or 40 years,” Krichbaum said. “We have had professional relationships and personal relationships. Our families spend time together. He and I play golf together.” He added, “He is someone I trust and admire.”

He asked if any of the roughly 33 potential grand jurors had any concerns about being obligated to spend the next four months every Thursday morning as a grand juror, and none said they did.

“It’s a big deal, and it’s a big commitment, but it’s something necessary and worthwhile,” he said of that service. He empaneled nine grand jurors, Iberis as foreperson and five alternates, who are “like a pinch hitter” who sometimes “has to go in and hit the ball,” he said.

He said the primary focus of a grand jury is felony charges, “as opposed to misdemeanors,” which are smaller criminal cases. “For a misdemeanor conviction, the worst that can happen to you is some form of incarceration in the Mahoning County jail for no longer than six months,” Krichbaum said. “A felony subjects you to a possible penalty in a penitentiary for no less than six months and can go all the way up to imposing a death penalty upon someone. So it’s much more serious crime that you deal with.”

Krichbaum said that any time the government can “take your life or your liberty from you and put you in a penitentiary,” there has to be an indictment against someone.

He said the grand jurors’ job is “not to determine whether someone is guilty beyond a reasonable doubt or not guilty. Your function is simply to determine whether there is probable cause to believe that a crime was committed and that a certain person committed that crime. If so, then you would indict someone. If you don’t think there is that probable cause, then it’s your duty not to indict someone.” He added, “The primary duty of the grand jury … is to determine whether an accused should stand trial on a serious criminal charge.

OATH

The grand jurors stood and took an oath, swearing to answer all questions asked of them truthfully. They agreed they would. All said they were not employed by the Mahoning County Prosecutor’s Office or related to anyone who works there.

Krichbaum read a series of questions to “see if you have any preconceived ideas that you can’t lay aside or you have any experience in your personal life that would make it difficult for you to serve on the grand jury.”

The oath vowed they would “keep secret all proceedings of the grand jury unless you are required in a court of justice to make disclosures.” The oath stated that they would “indict no person through malice, hatred or ill will” and not “leave any person unindicted through fear, favor or affection or for any reward or hope thereof.”

The court reporter, who also swears an oath to keep all proceedings secret, takes down a record of the grand jury’s proceedings, Krichbaum said. But those records are “kept secret” and “hardly anybody gets to see” them.

An attorney asked Krichbaum earlier that day for a transcript of what a witness said before a grand jury in a particular matter, he said. “Traditionally and in my experience, that is seldom, if ever, granted. It takes something really special for that to happen,” he said.

One reason the proceedings are secret is to protect “persons from unfounded accusations.” He said the grand jury should “return an indictment only against those who you find are probably guilty of the commission of the crime. Reputations of persons or organizations would be harmed or ruined if grand jury investigations were made public,” he said.

Another reason for secrecy is that if anyone likely to be indicted by a grand jury should learn of the investigation of a matter being considered by the grand jury, the person “might flee the jurisdiction,” he said

Secrecy also protects grand jurors “from any outside influence,” he said. And it protects witnesses from any type of “identification and/or intimidation.” The individual vote of any grand juror is not to be disclosed by anyone. It is against the law for anyone to try to intimidate, injure or influence a grand juror in performance of the grand juror’s duties, Krichbaum said.

ONE SIDE OF CASE

He mentioned one of the more controversial aspects of the grand jury system employed in Ohio and many other states — the provision that only prosecutors, not a representative of the accused, present evidence to grand juries.

Grand jurors will “hear only one side of the case,” Krichbaum said, adding that it is “not your duty to decide the guilt or innocence of the accused. It is your duty to determine whether there is sufficient evidence or probable cause to require the accused to stand trial.”

Probable cause to believe a person committed a crime is “a reasonable ground to suspect that a person has committed a crime which amounts to more than a bare suspicion but less than evidence that is needed for a conviction,” he said.

The critical factors for a grand jury to consider in deciding whether to indict someone are the quality and quantity of evidence. But he added, “Neither by statute or by rule are there any standards created to guide a grand jury in determining who shall stand trial, nor does any machinery exist for judicial review of a decision by a grand jury,” he said.

Iberis will have a copy of the instructions Krichbaum gave the grand jurors that he can “share with you, that he can refer you to or even show to you, whatever you need,” Krichbaum said.

“But honestly, the prosecuting attorney, Mr. Andrews and Ms. Maro and any of the assistants to Ms. Maro, are honorable and capable and very talented people that will guide you through this process that you will find to be very rewarding, and I think you will be impressed with what they do as professionals,” he said.

Krichbaum said any grand juror can ask Krichbaum to reread the instructions he gave them on being a grand juror “as he or she thinks necessary.” He said he will “be available,” though he will not be “with you in your duties as grand jurors.”

According to the Findlaw.com web site, all but two states and the District of Columbia use grand juries for criminal indictments in at least some cases. Connecticut and Pennsylvania have abolished the use of grand juries for criminal indictments. In 23 states, including Ohio, indictments are required for certain serious crimes. In 25 other states, a grand jury indictment is optional.

CRITICISM

The grand jury process has been criticized by some. New York Court of Appeals Judge Sol Wachtler famously coined the expression that a grand jury would “indict a ham sandwich” if a prosecutor asked nicely, meaning that the bar is low to indict someone.

Around 2016, the Ohio Supreme Court released two documents related to the work of the Task Force to Examine Improvements to the Ohio Grand Jury System.

One document called an “Overview of the Grand Jury System” stated that “The grand jury was created to protect citizens from over-zealous prosecution, acting as a shield against unfounded or unfair criminal charges. In more modern times, however, the grand jury has come under fire from scholars asserting that its once protective function is a relic of the past.”

Scholars have argued that because grand juries indict such a high percentage of the cases they review, “the grand jury has become ‘a total captive of the prosecutor,”” adding that the strict secrecy requirements of a grand jury can lead to “inadequate and unquestioned evidence being used at the grand jury levels.”

The July 2016 Ohio Supreme Court “Report and Recommendations” on the work of that same task force stated that a big reason the task force was created was to look at the number of instances of police use of force against citizens across the nation and questions about the process to indict police officers in such instances.

The task force ultimately recommended granting the Ohio Attorney General’s Office “exclusive authority to investigate and prosecute police lethal use of force cases through its Special Prosecutions Section and its Bureau of Criminal Investigation.”

That provision has apparently never been implemented. But Steve Irwin, press secretary at the Ohio Attorney General’s Office, stated in an email that the Attorney General’s Office’s Special Prosecution Section “is frequently appointed by county prosecutors to serve as a special prosecutor in officer-involved shooting cases.” They have handled them “since at least 2014,” he said. He added that “Our office’s policy is that these cases are presented to a grand jury.”

Among the grand jury-related recommendations by the task force were to amend the instructions given to grand jurors before they begin their service on the grand jury to “emphasize” to the grand jurors the “independence” of the grand jury.

“Specifically the (instructions) should state that the grand jury foreperson has the ability to request advice from the (judge overseeing the grand jury) at any time” and “ask the prosecuting attorney for any other charges that may be considered, based upon the facts presented to the grand jury.”

It also recommended emphasizing to the grand jurors that they are the “sole judges of the facts” and giving them a written copy of the instructions to keep.