JUANA SUMMERS, HOST:
Something unusual is happening behind closed doors here in Washington, D.C. People who serve on grand juries are rejecting the government's arguments. NPR's Carrie Johnson explains.
CARRIE JOHNSON, BYLINE: Over the past month, grand juries in D.C. have refused to indict defendants at least seven times. That almost never happens because prosecutors exercise near-total control over grand jury proceedings. Robert Cindrich is a retired federal judge in Pennsylvania.
ROBERT CINDRICH: Keep in mind that only the prosecutor is in the room. The only evidence the jury hears is that which the prosecution gives them.
JOHNSON: And the grand jury needs to find only probable cause that a person broke the law, not proof beyond a reasonable doubt. Kevin Flynn prosecuted violent crime and homicide cases in D.C., starting in 1987.
KEVIN FLYNN: So I was in the office for 35 years, and a friend of mine was in the office for 25 years, so a combined 60 years of experience. We compared notes last week. He never had a case no-billed by the grand jury, and I just had one.
JOHNSON: Flynn says the rejections by grand juries today represent a failure of prosecutorial discretion. Prosecutors can charge virtually any crime that comes to their attention, but they usually make judgments about how to use their resources - decisions at the start about which cases to drop and which to charge, in a process called papering.
FLYNN: I understand that the U.S. attorney has ordered the prosecutors in that office to paper every single case that the police bring in, which, by the way, is prima facie asinine.
JOHNSON: Grand juries operate in secret. Professor Paul Butler at Georgetown Law Center says there are a couple reasons why they may be resisting.
PAUL BUTLER: Either the jurors thought that the prosecutors hadn't proven even the low standard of probable cause, or it could be that they're more bothered by what the government did than what the defendant is accused of doing.
JOHNSON: These grand jury rejections started happening around the time President Trump surged federal agents and National Guard troops to the city. Take the case of Sean Charles Dunn, the former Justice Department worker accused of throwing a subway sandwich at a federal immigration officer. He got charged with felony assault of a law enforcement officer, which carries up to eight years in prison. The grand jury wasn't buying it. Again, Paul Butler.
BUTLER: That crime requires that the prosecutor prove an intent to kill or seriously harm from a sandwich being thrown at you. Come on.
JOHNSON: Dunn will not get off scot-free. He now faces a misdemeanor charge, which carries up to a year in jail. In recent days, he's become a symbol of resistance in the district. Posters of Dunn chucking a sub sandwich have cropped up across the city. During the morning rush on 14th Street this week, people stopped to peer at the street art, but they didn't want to share their last names for fear of reprisal. Ashley, who's lived in D.C. more than eight years, counted herself a fan.
ASHLEY: Yeah, I don't know. It's a - it's just a great reminder that, you know, small acts of rebellion can help.
JOHNSON: Jackie stopped to look on her way to the grocery store. She's lived in D.C. for 60 years, and she does not think the National Guard presence here is necessary. But she says acting out against police is not the answer.
JACKIE: I don't think policemen deserve that, you know? Say what you want to say about them, but I don't think we should mistreat them.
JOHNSON: U.S. Attorney Jeanine Pirro told NPR in a statement that, quote, "the system here is broken on many levels." Pirro says juries have been politicized, refusing to indict people accused of making threats against President Trump and, in Pirro's view, refusing to abide by their oath to follow the law. Retired Judge Cindrich says, from the outside, it appears the justice system is working the way it should.
CINDRICH: The citizen, in the end, in the American system of justice, is the final arbiter.
JOHNSON: Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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