BRIAN KENNY: So Help You God
August 20, 2010
I recently met up with Brian Kenny, and while he was showing me some of his new work, he began talking about his time spent on grand jury duty, sketching the scenes like a subversive court reporter in order to keep himself awake. Having done my utmost to escape sitting in judgment of anyone, I am simultaneously fascinated and repelled by our court system, one which is more a function of bureaucracy rather than democracy. With questions spilling from my fingertips, Brian graciously agreed to speak on his experience here.
Please talk about your experience sitting in grand jury—how does the process work? What were you, as a grand juror, responsible for, and how did you feel about sitting in judgment of other people?
BK: To give you some background, there are two kinds of juries in the criminal justice system, a Petit/Trial jury (like you see on TV) and a Grand Jury. I was selected as a Grand Juror. A Grand Jury decides whether there is enough evidence for an actual trial and issues formal indictments (or charges) for alleged crimes against defendants by examining evidence presented by the prosecution. Before a Grand Jury actually passes an indictment, criminal charges against someone are only “theories”.
Only the US has Grand Juries anymore and it functions as part of the system of checks and balances, so that people don’t go to trial under official criminal charges based on only the Prosecutors bare word. In New York State, a Grand Jury is made up of a quorum of 23 Jurors and a “yay” vote of at least 12 jurors is required to pass a formal indictment against the defendant, so the vote by jurors does not have to be unanimous. If passed, then the case goes to trial, if not, the case is thrown out.
Now, unlike a Petit Jury which only focuses on one trial, I examined and voted on hundreds of cases, one after another, for two weeks, fulltime. They move so quickly because only the prosecution presents evidence (although a defendant is allowed to speak for themselves, but almost never does and are not required to be present), and the evidence is minimal. Grand Juries only require enough evidence to support ‘reasonable cause” that the defendant committed a crime, not “reason beyond a doubt” like a trial jury.
So a typical case in the Grand Jury plays out as follows:
The District Attorney (prosecution) will say “I’d like you to consider charges of felony possession of a controlled substance in the 3rd degree against (let’s say) Mr. Smith. We have three witness that will testify that Mr. Smith was found in possession of Heroin on January 21st on Houston Street”
Then two undercover cops will come in one by one and tell us how they saw Mr. Smith exchange money for a small baggie on the corner and after approaching and searching the defendant, they recovered a small bag with 4 vials of what they believe to be Heroin and placed the Mr. Smith under arrest. Then the DA will call in the lab analyst or read the lab analyst’s letter confirming that the substance was tested and is in fact Heroin.
After that the DA will read out loud all the legal mumbo jumbo concerning criminal drug possession laws, which is by far the most boring part and finally the DA will ask us if we have any questions and leaves the room while we the jury deliberates. We all vote, “yay” or “nay” to indict, and call the DA back in to give our answer. If 12 or more vote “yay” the charges become official and the defendant goes to trial, most likely to be found guilty and sent to jail. Next case.
That’s basically how it worked, over and over. It wasn’t hard to be in judgement of others, but it was frustrating that nearly half the jurors could disagree with the evidence and indictments are still passed. I also found it kind of annoying that although the District Attorney were presenting evidence to us jurors, real live people, but everything they said was really ‘for the record’, so they were actually talking at us in this impersonal, over-explained way to satisfy the stenographers documenting every word.
I love that for all intents and purposes, you were the courtroom artist, illustrating the scenes as they do not allow cameras in. Yet your perspective was very distinct from how this work is usually done as the images are less narrative, and more metaphorical. How did you decide you wanted to begin drawing in court? What were some of the ideas you began exploring through your sketches?
BK: I started drawing on day one without really making a deliberate decision to document everyone. I tend to draw compulsively; sitting still is hard for me and I tend to listen better if I can keep my hands busy. There were moments, like the rape or abuse cases that were very intense and heartbreaking, (almost like being inside an episode of ‘Law and Order’), but most of the jury duty was super boring; endless droning by the District Attorney reading definitions and procedures from the law books. Thus, drawing was a good way for me to stay awake and engaged. Soon after I began drawing I realized this was a perfect opportunity to use all the DA’s cops, lawyers, witnesses, defendant as live models for drawings because here I was sitting in the front row of a kind of small auditorium and one by one, all sorts of people kept sitting at the table in front of me every couple minutes. I didn’t really have any ideas I was exploring other than trying to draw them quickly before they got up and left the stand!
Did the act of sketching alter your perception of the events as they unfolded in court ?
BK: Yes in way. Because I was looking at each person very closely in order to draw them accurately, I noticed a lot of distinct and subtle body language, personal hygiene factors, and fashion sensibilities that did affect my own opinions of them in regards to their integrity or self-esteem.
For example, although all of the DA’s and lawyers dressed and acted in very formal almost detached robotic manner, as I drew closer, I noticed how some were actually very insecure, wringing their hands or not making eye contact while others seemed to relish dishing out justice, their eyes sparkling, reciting law from memory and adding little pieces of flair to their suits like 3 point breast pocket hankies! Most of the undercover cops, (and there were TONS of them) dressed poorly; food stained sweats, drab K-mart styles, oversize jackets, unshaven, beady eyed, thick accents, over-weight. This kind of unkempt appearance in addition to not being very well spoken, definitely affected my opinion of their credibility considering many of them mirrored the criminals they arrested. Often, the only evidence we received to indict someone of a crime, especially in the drug cases, came from these messy figures whose integrity looked questionable.
Did anyone in the jury box or court notice you were sketching ? If not, what did you observe them to be doing?
BK: Yes, the jurors and warden noticed I was drawing everyone who took the stand. The other jurors loved it and luckily so did the Jury Warden. I was afraid the warden would tell me to stop or confiscate my drawings because the Handbook actually states that even private notes made by jurors during duty are confidential and cannot be shared or leave the courtroom. But after a couple days, the warden was offering me nicer drawing paper and some jurors asked me to email them scans of drawings I made. About half of the people I was drawing noticed I was looking at them very closely, but no one spoke up about it or even seemed to care. A whole room full of people was also staring at them and they probably assumed I was just taking notes.
What did you find most eye opening about being a part of the American legal system ?
BK: My Jury Duty experience was eye-opening and in many ways. Artistically, it was expansive because I was drawing outside of my comfort zone. In my own practice I usually draw myself or guys who look like me endlessly, so it was a challenging departure to draw all types of people live; old ladies, children, fat men and sexy young women.
I also learned a lot about the American Justice system and New York City criminal politics but left with a lot of mixed feelings about it. I noticed that virtually 90% of all criminal activity in New York City is either theft or drugs, essentially non-violent crimes. The drugs cases were the most frustrating part of being a juror. I view drug addictions as more of a health issue than a criminal issue and so I refused to vote to indict anyone on drug charges, as did a few other young jurors, but we were always outvoted by the majority and it was sad to know most of them will end up in jail where they do not belong.
Although I respect and believe in the system of checks and balances as part of a true democratic judicial process, I also felt like the Grand Jury system was designed to pass indictments. We only ever heard from the prosecution, which makes the presentation of criminal evidences one-sided. Defendants themselves do have a right to speak on their own behalf, but I doubt most of them realize this because out of the hundreds of case I saw, only a handful of defendants actually used that opportunity. Unfortunately the defendant’s lawyers are not allowed to speak to the Grand Jury. In addition, a Grand Jury only examines the most obvious evidence because it seeks only ‘reasonable cause’ for an indictment. So the whole picture of a possible crime is not presented.
Add to that the fact that the majority of witness and evidence to criminal allegations were testimonies by undercover cops. As I said earlier, these cop’s appearance already aroused my suspicions of their credibility. Besides, cops are required to make arrests and so it’s in their own career interest to make as many arrests as possible. Especially in the drug cases, I often noticed that their testimonies seemed suspicious.
For example, one cop described how he was walking on the street and saw through the window of a car someone exchange money and drugs. When the suspect exited the car, he approached him and after searching him, found drugs. However, another cop who was involved in the arrest but did not see the transaction, told us after we questioned him separately that the car was a big black SUV with tinted windows. So how did the first cop actually see what was happening? Someone was lying. Of course, that still did not stop the jury from indicting the defendant.
Many testimonies like this were strange or somewhat incomplete. It made me wonder whether many of these drugs arrests actually traps set up by undercover police to increase arrests. Perhaps I’m just paranoid but a recent unrelated event only deepens my suspicions. Last week, Slava and I were coming home and as we crossed Chistopher and 7th avenue (a corner that at night always have some shady characters loitering around) and Slava noticed a shiny penny near the corner. Slava picked it up and began to examine it because it’s one of those new 2010 pennies where they have replaced the Lincoln Memorial with a shield that says “E pluribus Unum”. He showed it to me and we continued walking down the street. Then out of nowhere a green van speeds backwards down the street and screeches to a halt in front of us. Three undercover cops jump out of the car and start yelling at us “Police, Don’t move! Keep you hands where we can see them!” They rush over to Slava saying “Show us what you’ve got in your hands!” Slava opens his hand and shows them the penny we just picked up, and the cops stop and say “Oh, sorry, we thought it was drugs, umm, sorry about that, have a good night” and got back into the car and drove off just as quickly.
The whole incident was so shocking and unexpected that we both wondered if the cops had actually placed drugs on the street nearby waiting for someone to pick it up. I could be wrong but the whole incident just felt like we had walked into a trap.
Overall, my jury duty experience was worthwhile artistically and I really learned a lot about crime and punishment in New York City. I do believe in the use of Juries made up of real citizens and was proud to do my part, but also feel that the system is totally vulnerable to manipulation, and that the drug laws especially need to be re-examined in favor of rehabilitation or community service over worthless punishment or revenue.