In recent weeks, after the deplorable events in Ferguson, Mo., and Staten Island, N.Y., commentators have reminded us constantly of the old legal adage that a grand jury "will indict a ham sandwich" at the behest of a prosecutor. We have also been reminded that the converse is true, i.e. that a grand jury will also refuse to indict if that's what the prosecutor wants. That is what I believe happened, regrettably, in Ferguson and Staten Island. The experience I recount here, however, involves the ham sandwich trope, about which I offer personal — and humiliating — evidence that disproves it, or is at least the exception that proves the rule. A grand jury sometimes has a mind of its own.
It was in June 1961, my very first day as an assistant United States attorney in Baltimore. One of my new colleagues, an office veteran, asked me to do him a favor: present a case involving the alleged forger of a U.S. Treasury check to a grand jury that was to meet the next day. "Nothing to it," he assured me, "just let your witness, the Secret Service agent, tell his story."
I was thrilled. This was to be my first time at bat.
The grand jury returned about 22 indictments —"true bills" — that day. It returned one "no bill" — mine. I had struck out. And I was crushed. Whatever happened, I wondered, to that comforting prosecutor's homily that grand juries did as they were told?
There were, to be sure, extenuating circumstances. It was the opening day of the grand jury's term. It hadn't heard that it was supposed to indict ham sandwiches if a prosecutor asked it to. Judge R. Dorsey Watkins, who swore in the members, gave a short history of the role of a grand jury and stressed its historic function as a protection against prosecutorial excess. United States Attorney Joe Tydings, my boss — presented with the opportunity to address 23 captive Maryland voters — offered up some additional bromides about protecting the innocent. My Secret Service agent, a rookie like me whom I neglected to prepare, badly mishandled jurors' questions. Finally, and most importantly, our evidence was pitiably thin at its strongest point. It was, indeed, the proverbial ham sandwich.
My nightmare continued the next day. U.S. Attorney Tydings convened a staff meeting to discuss my fracture of the ham sandwich legend. He underscored the obvious: If we couldn't win a one-sided case before a grand jury — where the burden of proof was minimal and the prospective defendant was unrepresented and unable to call witnesses — how could we expect to win on a level playing field, where the defendant had an advocate and the prosecution's burden of proof was much higher?
Joe certainly meant me no harm; my misadventure was only a teaching tool, he said. It remains, nonetheless, the worst day of my long career as a prosecutor.
The colleague for whom I had done the "favor" presented the case to a subsequent grand jury which, in compliance with the ham sandwich dictum, returned a true bill. But when the case came to court the trial jury acquitted the defendant. In a metamorphosis that mirrored the meaning of justice itself, that ham sandwich of an indictment had become a turkey of a case.
I confess that I retain, even after 50 years, a sense of vindication, even joy — at our defeat at trial. That first grand jury — the one that didn't indict the ham sandwich notwithstanding the urging of this prosecutor — got it right.
Stephen H. Sachs was United States attorney for Maryland from 1967 to 1970 and state attorney general from 1979 to 1987. His email is steve.sachs@wilmerhale.com.