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He is not the only one that does this. The district attorneys do this all over the country to different degrees, but this was malevolent, irresponsible, and disastrous. He would present the indictment, file it, and then release it to the press.

Experience dictated there were many of these indictments that were faulty and could not withstand judicial review. On motion of defendant, the court oftentimes dismissed the indictment but the damage was done, irreparable damage was done.

The suggestion is before the indictment is in fact filed, it should be subjected to judicial review. Always the proceedings are secret and should be kept secret to protect the rights of all concerns. Oftentimes grand juries hand down erroneous indictments caused in part by inadequate information or biased presentation of the evidence by prosecutors.

Extensive publicity of an erroneous indictment can thoroughly destroy a person's reputation and even if the indictment is thrown out the damage has been done. Briefly two other recommendations recommended by the State assembly panel which bear consideration include the fact that prosecutors must prior to trial present to the defense all exculpatory evidence in favor of a defendant.

To elaborate on that, I think it would be incumbent on the prosecutor who was ostensibly seeking justice and seeking the truth in connection with an issue that he should present all exculpatory evidence and witnesses before the grand jury.

Also prosecutors must inform all witnesses of their rights prior to a grand jury appearance. They should also be advised of the subject matter of the hearing. They should be covered under the penalties for divulging information about a grand jury proceeding.

Essential to any grand jury reform must be the adoption at both State and Federal levels of a specific code of conduct for all prosecutors. This code should contain prohibitions for using an office for political gain.

Prosecutors today hold far too much power and if allowed to continue the rights of the individual will be trampled upon.

The grand jury system was created as a means of assuring due process, and grand juries are susceptible to influence. One final comment was in connection with unauthorized leaks of grand jury proceedings.

This problem has proliferated in recent years. Despite the present State and Federal statutes of revealing grand jury proceedings, these statutes appear to have no real effect. Perhaps this is the single most dangerous threat to the security of the rights of the individuals.

A person's reputation can be ruined even when no indictments are returned and even when no wrongdoing of any kind can be shown. Erroneous information disclosed of unauthorized grand jury leaks is often difficult to refute if the sources of leaks have not been disclosed.

Adverse pretrial publicity jeopardizes the individual's right to trial. These leaks come from many sources, employees and press and even members of the grand juries themselves. The most common offender is the prosecutor who leaks in his own sophisticated fashion. We are having to attend to a broader problem in our criminal justice system, the growth of politically motivated prosecutors who have

come to use this form of grand jury as a tool to further their ambitions.

Mr. EILBERG. We thank you very much for your enlightened statement, and I am sure the subcommittee will read it very closely and benefit by it. We have a few points we would like to raise with you. I believe you have them before you. I ask you first, do you support the provisions of H.R. 1277 which would make it a criminal penalty for making any unauthorized disclosure of evidence or testimony presented during a grand jury proceeding?

Mr. BIAGGI. Absolutely. To expand on it, indeed to disclose that such a proceeding is underway and certain people have appeared or whatever they have said. It is that very notion that you are called before a grand jury in our society today that is incriminating whether you are called as a cooperative witness, whether you are called as a routine witness to provide some basic, fundamental, explanatory information to aid the grand jury.

The purpose of your presence before the grand jury has no bearing on the effect or impact it may have once the fact of your appearance is released to the public.

Mr. EILBERG. Can you envision any objections to the provisions contained in H.R. 1277 which would require judges, when impaneling grand juries, to advise them of their rights and duties?

Mr. BIAGGI. NO. As a matter of fact, it should be an absolute obligation and it is an essential ingredient and the fact is that in dealing with the grand jury, grand juries become part of the system. They are mesmerized by the prosecution and they respond in rubber stamp fashion. We have characterized those who have displayed some independence as runaway judges and they have been characterized in an unfavorable light.

Grand juries should be constructed in explicit form. They are not subject to the will of the prosecutor. They too have certain rights and privileges and do have extraordinary independence. That should be impressed with vigor on any grand jury.

Mr. EILBERG. You have already testified that you would allow counsel to be present with the witness in a grand jury room. What is your reaction to the arguments raised by the Department of Justice that such a right would unduly delay grand jury proceedings and adversely affect the secrecy of such proceedings?

Mr. BIAGGI. As far as the secrecy is concerned, you could-secrecy, as far as the attorney-client, they have a right to communicate, obviously, and discuss the matter. But outside of that, if the witness is a target he is at liberty to do what he wants at the proceedings. If he is a witness, not a target, there should be some limitations. If that witness is accompanied by that attorney, that attorney should be subjected to the same limitations and penalties for revealing any testimony given during the grand jury proceedings.

Mr. EILBERG. Regarding

Mr. BIAGGI. As far as delays are concerned it is a specious argument. You are dealing with justice, the welfare of individuals, rights, reputations, whole lives. Who is to say what represents delay? We just went through a Mitchell proceeding up in New York that was endless. No one questioned the fact that it was lengthy. It was a process underway. If you are protecting the rights without impairing the right of the government to proceed-delaying is not impairing.

The arguments are specious and I would reject them out of hand. Mr. EILBERG. You mentioned a potential defendant. Should a target of the grand jury investigation be allowed to appear before the grand jury to present his side of the story?

Mr. BIAGGI. Absolutely. I am an attorney. My associates and I believe the client is telling us the truth. We know that circumstances present one impression absent the client's statement.

We are not given to sending clients into the grand jury. We have no faith in that. But we also know that absent his statement which could be exculpatory, he is sure to be indicted. We recommend him going in to state his side. Whenever we have done that, we have been proven right.

I say it is very-bearing in mind the pure objective of the prosecutor and the process to find the truth, then it is incumbent upon the prosecutor to bring in witnesses that he feels will prove the crime is committed and also bring in witnesses that have exculpatory testimony to bring in, to produce.

Then the grand jury will make its decisions, not the prosecutor making his decisions. It will be the grand jury making its decisions. Oftentimes district attorneys do that. They take a very objective attitude. They say we have no real feeling in this matter. We are not out to kill or build other statistics.

They will bring in the prosecutor's witnesses. They will bring in all the witnesses and the grand jury will make a determination on that basis.

Mr. EILBERG. One other very important subject I would like to raise with you is immunity. There has been a great deal of discussion and controversy with regard to the use immunity which was authorized by the 1970 Crime Control Act and many people now feel that we should go back to transactional immunity.

What is your view?

Mr. BIAGGI. I was one of those who voted for that act and I voted for the use immunity. But my observation over the intervening years has been that that was a mistake.

I think the rights of people have been impaired and that we should return to transactional immunity which we had been using for decades. The experience has been bitter. I don't think the justice system has benefited as a result.

Mr. EILBERG. Are you prepared now to expand on that a little bit? Why would you abandon use immunity and go back to transactional immunity?

Mr. BIAGGI. You are giving a man immunity and having him testify. Prosecutors, again-a man will testify and in the process-he is a witness, not a target-but in the process there are revelations made, not on point, not dealing or relating to the present issue. The individual now exposes himself to prosecution.

He is not covered. Inadvertently he has disclosed it. I am not saying that if he did commit that offense, he should not be prosecuted. I am saying that under other circumstances, he would be given greater rights. His rights were not protected.

Here he is working with the government, giving testimony that obviously must be of some value and he is getting little or nothing in

return.

Mr. EILBERG. Mr. Biaggi, thank you very much. There are many areas we would like to discuss with you but in the interest of saving time, I am not going to attempt to do that now. We welcome any other expressions or comments you might want to give us in writing for the record, because of your tremendous experience in this field.

Thank you very much.

Mr. BIAGGI. Thank you. Again I want to congratulate you because what you are doing is significant in the preservation of the due process and the justice system which is essential to the order of our land. [A copy of In re Biaggi, 478 F. 2d 489 (1973) follows:]

IN RE BIAGGI, 478 F. 2d 489 (1973)

FRIENDLY, Chief Judge:

Mario Biaggi, a member of the House of Representatives, is a candidate in the Democratic primary for nomination for the mayoralty of New York City and is the Conservative Party candidate for that office. He appeals from an order of the District Court for the Southern District of New York directing the public disclosure of testimony given by him before a federal grand jury in that district on November 26, 1971, redacted so as not to reveal the names of other persons or businesses mentioned therein, as well as from the denial of certain motions of his which are described below.

The events leading to these proceedings begin with an article in the New York Times of April 18, 1973, by Times reporter Nicholas Gage. The article said that "authoritative sources" had revealed that Mr. Biaggi had “refused to answer at least 30 questions when he appeared before a Federal grand jury more than a year ago" and that he had “invoked the Fifth Amendment on questions related mostly to his finances"; that Mr. Biaggi "denied that he ever invoked the Fifth Amendment before any Federal grand jury"; but that "the sources said he answered the questions relating specifically to immigration matters but refused to answer more than 30 others, a number of which concerned his finances." The flame thus kindled proceeded to spread. In a television broadcast on April 25, Mr. Biaggi announced that on the following day he would move in the district court to have his grand jury testimony reviewed by a panel of three district judges “for the sole purpose of determining whether or not I took the Fifth Amendment privilege or any other privilege on my personal finances and assets." The brief of the United States asserts that in a later press interview on April 25 Mr. Biaggi denied, as reported in the April 18 article, that he had invoked the privilege with respect to any questions.

[1] In conformity with the television announcement counsel for Mr. Biaggi moved, on April 26, for an order whereby a court of three district judges' would examine the grand jury minutes and make a public report whether, during his grand jury appearances on October 29 and November 26, 1971, he had claimed any constitutional privilege about his personal finances or assets. Without awaiting this motion, the United States Attorney moved earlier on April 26 for the disclosure of all of Mr. Biaggi's grand jury testimony on November 26, redacted so as to eliminate the names of other persons. The district court granted the latter motion on the afternoon of April 30, also denying Mr. Biaggi's motion, but stayed the release for 24 hours to permit an application by Mr. Biaggi to this court for a further stay pending appeal. On the morning of May 1 we extended the stay pending speedy determination of the appeal, which we ordered to be heard on May 2. On the afternoon of May 1, Mr. Biaggi made another motion to Judge Palmieri. Claiming that release of the redacted testimony of November 26 would lead to endless speculation about the blankedout names, and would perhaps involve him in libel suits were he to reveal such names himself, he moved for full disclosure of the minutes of both his grand jury appearances. The United States Attorney expressed willingness to include as much of the October 29 testimony as was

1 We inquired of the United States Attorney at argument what efforts had been made to investigate these leaks. He assured us that he had interviewed the Assistant United States Attorney who had questioned Mr. Biaggi before the grand jury, and also was satisfied of the security of the grand jury minutes. We direct that the investigation be further pursued. 2 Apparently the reference was to his introduction of private bills on behalf of immigrants.

3 In the course of argument before the district court counsel expressed a willingness to have the examination made by a single judge.

needed for full understanding of the testimony of November 26 but resisted disclosure of the names of third persons mentioned in the transcripts of either date. When Mr. Biaggi refused to accede to redaction, the judge denied the motion. Mr. Biaggi appeals from the order directing the release of his testimony of November 26 and from the denials of his motions. Since the former order is obviously appealable we need not consider the status of the latter.

[2] It is a tradition of our law that proceedings before a grand jury shall generally remain secret. The Supreme Court has referred to this as a long established policy "older than our Nation itself." Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S. Ct. 1237, 3 L.Ed.2d 1323 (1959). The tradition rests on a number of interests-the interest of the government against disclosure of its investigation of crime which may forewarn the intended objects of its inquiry or inhibit future witnesses from speaking freely; the interest of a witness against the disclosure of testimony of others which he has had no opportunity to cross-examine or rebut, or of his own testimony on matters which may be irrelevant or where he may have been subjected to prosecutorial brow-beating without the protection of counsel; the similar interests of other persons who may have been unfavorably mentioned by grand jury witnesses or in questions of the prosecutor; protection of witnesses against reprisal; and the interests and protection of the grand jurors themselves.*

The secrecy of grand jury testimony, however, is not absolute. As would be expected, the subject has not been left at large but has been dealth with in the Federal Rules of Criminal Procedure." Rule 6(e) provides for three, and only three, exceptions to the rule of secrecy. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror "may be made to the attorneys for the government for use in the performance of their duties." The court may grant the request of a defendant for access to grand jury minutes "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." Finally, matters maybe disclosed "when so directed by the court preliminarily to or in connection with a judicial proceeding."

[3, 4] Manifestly neither of the first two exceptions applies here. The permitted disclosure "to the attorneys for the government for use in performance of their duties" refers to their need for the minutes in the preparation of criminal or, sometimes, civil cases; it does not confer a license to broadcast a transcript of grand jury proceedings to the world, and the United States Attorney asserts no such license here. Since Mr. Biaggi has not been the subject of an indictment, there can be and was no request on his part to have access to the minutes for the purpose of dismissing one. The largest breach in the wall of secrecy has been wrought by the third exception. Balancing the interest of secrecy of the grand jury proceedings against the goal of a just result in a judicial proceeding, this exception rules in favor of the latter-subject, however, to the detailed control of the judge. That exception too is inapplicable here. We have not been told of any judicial proceeding preliminary to or in connection with which the minutes of Mr. Biaggi's grand jury testimony may be relevant; obviously the permission to disclose for use in connection with "a judicial proceeding" does not encompass a proceeding instituted solely for the purpose of accomplishing disclosure. The references in federal cases to disclosure of grand jury testimony "in the interest of justice" cited by the Government, of which United States v. SoconyVacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), is a sufficient example, are all in the context of use in judicial proceedings of some sort with the possible exception of In re Bullock, 103 F. Supp. 639, 643 (D.D.C. 1952). Even in that case disclosure was to be made only to the Commissioners of the District of Columbia, Inspector Bullock's employers, not to the public.

In Pittsburgh Plate Glass Co. v. United States, supra, 360 U.S. at 405, 79 S. Ct. 1237 (dissenting opinion), Mr. Justice Brennan enumerated the objectives in different language but substantially to the same effect.

The Jencks Act, 18 U.S.C. § 3500, has recently been amended to include the statement of a grand jury witness called by the Government to testify in a criminal prosecution, but this is so plainly irrelevant that we shall not encumber the opinion with references to it. It is worth noting that under Grunewald v. United States, 353 U.S. 391, 415–426, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957), even if Mr. Biaggi were to appear as a witness in a civil or criminal proceeding, he could not be asked whether he had claimed the constitutional privilege before the grand jury-although that decision rests on grounds other than the secrecy of grand jury minutes.

We likewise find in support for the disclosure in Doe v. Rosenberry, 255 F. 2d 118 (2) Cir. 1958). That case went on the ground that disclosure of grand jury minutes to the Grievance Committee of the Bar of the City of New York for investigation whether disciplinary proceedings should be instituted before the Appellate Division of the New York Supreme Court was preliminary to a judicial proceeding.

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