Monday, July 10, 2000

Prosecutor control and the need 
for a grand jury 'bill of rights'

    Whether grand juries are impaneled to serve the people or are merely a prosecutorial tool is an argument that has been continuing for years.

     Proponents of the present system say grand juries represent the people by affirming whether criminal charges should or should not be filed against someone; they also criticize and suggest changes in the way agencies and businesses do their jobs.

     Critics say grand juries do what prosecutors want them to do because prosecutors hold all the cards:  They decide which witnesses to call, what testimony will be heard, what evidence will be given and how the grand jury will be informed.

     The issue of prosecutorial power over the grand jury has been revived in a report releases last month by the National Association of Criminal Defense Attorneys, which proposes 10 changes in the federal grand jury process - a grand jury "bill of rights."  A 20-member commission, including three former U.S. attorneys, was sharply critical of a system it says so favors prosecutors that an indictment is, in many cases, all that's needed for conviction.

     "The grand jury process itself is largely devoid of legal rules," according to the report.  Too many prosecutors, it concludes, use the system as an investigative tool at the expense of citizen's rights.

     Just such criticism has been leveled at the U.S. Attorney's Office in Tampa, which, in the past year, has been accused of sanctioning false grand jury testimony from state troopers involved in drug cases.  In addition, a seasoned prosecutor has been denounced by an appeals court for the "condemnable" act of lying to a grand jury and trying to rush deliberations to rubber-stamp the case.

     While we don't believe these examples represent the norm here or elsewhere, that they happen at all is reason for serious consideration of the proposed changes.

     The proposals mimic 20-year-old recommendations of the American Bar Association, suggestions that were largely ignored.  The most important - and controversial - would allow witnesses to appear before the grand jury with their lawyers.

     Today in the federal system, a subpoenaed witness has no right to have a lawyer present.  Officials say the secrecy encourages full and truthful testimony.  But it also gives the prosecutor complete control.  He decides what evidence to present and how it will be presented.  It puts the cooperative witness at risk of having his statements or admissions used against him.

     Historically, the grand jury's role was to shield innocent people against arbitrary and unfounded charges.  Grand jurors were supposed to decide whether there was reason to believe someone had committed a crime.

     The institution developed in medieval England.  In its earliest stages, the grand jury not only investigated and accused individuals, it also tried them.  But by Colonial times it was the only body that could accuse a person of a felony and hold him for trial, a right recognized under the U.S. Constitution.

Today, however, it's not the grand jury that makes decisions, but the prosecutors.   They can present evidence to the grand jury they know is not admissible in trial.   Although they are instructed in the U.S. attorneys' manual to let grand jurors know about evidence suggesting innocence, they do not have to.  Yet the target of the grand jury investigation has no right to give his or her version of events, and neither the accused nor the public has any right to know what was said during a hearing.

     Federal grand juries are not out of control, but some of the prosecutors who control them are.  The 10 proposals would take away some of that almost unlimited power without damaging the efficiency of the process.

     As former Deputy Attorney General Arnold Burns has written: "Most prosecutors... work long hours with little glory trying to bring about a just result.  The problem is at the margins - but the margins are growing.   Increasingly, the high public profile of a target or the attention-grabbing nature of the alleged wrongdoing may have more to do with a matter's 'prosecutorial merit' than the strength of the evidence or the seriousness of the crime."

     The grand jury is more than an investigative body for the U.S. Attorney's Office.  More critically, it is impaneled to protect the rights of citizens.  The proposed rules would help ensure a case merits prosecution.