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Guild and others in the radical defense bar had only managed, at best, an overall draw with the ISD when Watergate interrupted the grand jury campaign against the left in 1973.
The current state of the federal grand jury is summed up well by Special Watergate Prosecutor Charles Rufi, who said last July that “virtually the only restraints imposed on the prosecutor's use of the grand jury are those which he imposes on himself as a matter of his personal and professional morality or which are imposed on him as a matter of policy by his superiors.”
While prosecutor Alvey finds a certain amount of truth” in Ruff's contention, he maintains taht "the grand jury itself is a constraint” on the prosecutor. But the Justice Department has made a proposal that would eliminate that constraint, On September 10, 1974 the Department sent the House Judiciary Committee a letter proposing changes in grand jury functioning procedure and for the first time officially admitting that “the grand jury does not operate to protect the individual to any substantial degree." The letter calls for a Constitutional amendment that would make the federal grand jury's indictment function optional. The prosectuor would then have the power to proceed on his own information. No such amendment has yet been introduced in Congress.
Though the Justice Department seeks additional latitude in its use of grand juries. its powers over them already are considerable. Recent disclosures about a 1971 Seattle grand jury investigation reinforce that point. Defense lawyers at the time charged that the probe, ostensibly called to look into a bombing incident at the U.S. Capitol, was a cover for an anti-left offensive, an allegation rejected in the Justice Department's "Movement Obstructionism” memo of 1972. But last October in the Washington Post a former FBI official close to the investigation called it "a fishing expedition. We didn't know a damn thing. Leslie Bacon was the only thing we had. ... She was called before a grand jury in Seattle (instead of D.C.) because we were more likely to get an indictment out there." The Seattle location was, according to the former FBI official, "deliberately rigged ... to get an indictment.”
Rigged. That is the way Marty Stolar and his defenders in the radical bar see the grand jury. They see Stolar's federal subpoena of last spring as just another example of harassment. "It was purely an attempt to intimidate lawyers who were involved in defending people who the police feel are associated in one way or another with the Black Liberation Army," Stolar charges.
Eleven witnesses, including three lawyers, faced contempt in the Manhattan BLA grand jury probe. More than 100 witnesses testified. Reporters present at the time of the alleged passing of weapons were never subpoenaed. Yet certain spectators were. The Center lawyers defending the eleven who resisted the subpoenas claim that these spectators were selected through intelligence reports on radicals.
Peter Zimroth, the attorney handling the case for the D.A.'s office, denies the allegations and insists that a legitimate investigation is going on, that people were only subpoenaed because they "were at a place at a time when a crime was committed,” that no question of attorney-client privilege is involved in the case of the three lawyers subpoenaed. He insists that “New York has a lot of problems. This office has a lot of things to do rather than harass these eleven people."
Facing a possible four-year prison term for criminal contempt, several of the witnesses including one of the lawyers (who also face possible disbarment) reluctantly testified before the grand jury. The other two lawyers, including Stolar, continued in their refusal to appear before the grand jury but consented to answer questions in the D.A.'s office with their counsel present. Not under oath and with no stenographer present, the two agreed to answer questions only about events in the courtroom the morning of the alleged crime.
In a soon-to-be-published law journal article, Professor Matt Zwerling of the University of San Francisco School of Law, a recognized expert on grand jury law, writes that the abuse of grand jury is not just a thing of the past. "We face a potentially troubled time in which lawyers may be attacked for their politics, or simply for their zealous defense of their clients and their steadfastness in preserving the confidence of their clients. . . . If prosecutors are allowed to use grand juries to break up the fattorney-client) privilege, the erosion of our civil liberties will have progressed a further step and the grand jury, once an institution seen as the great protector of individual liberty, will be that much closer to an institution of prosecutorial repression."
Only when the American people--the bar included-see that the "people's panel" has been taken from them and insist on reclaiming it can such erosions of our liberties be ended.
STATEMENT OF Hox. ROBERT W. KASTENMEIER FOR THE SUBCOMMITTEE ON IMMI
GRATION, CITIZENSHIP AND INTERNATIONAL LAW on H.R. 6006 Mr. Chairman. I am very pleased to have the opportunity to express my support for H.R. 6006, the Grand Jury Reform Act of 1975, which I introduced on April 15, 1970. This legislation is a much needed response to clear and disturbing indications that the Federal Grand Juries have recently strayed from the path laid down by the Founding Fathers in the Bill of Rights. Traditionally, the Federal Grand Jury has performed two important and unique functions. First, it functions as a defender of the rights of individual citizens by acting as a safeguard against unjustified prosecution. This requires careful consideration of all relevant evidence prior to issuing an indictment. Second, the Federal Grand Jury functions as a guardian of the public interest by thoroughly investigating alleged criminal activities. Both of these functions are of extreme iinportance. In order to effectively perform these functions the citizens who comprise the Federal Grand Jury must be fully informed of their powers and duties and, most importantly, they must be free to act independent of political influence.
Unfortunately, in recent years the Federal Grand Jury has taken a new direction under the guidance of aggressive and imaginative prosecutors. As a result, in far too many instances Federal Grand Juries have become mere tools of prosecutors. Rather than protecting citizens from unjust prosecutions, these juries have become a means by which Federal prosecutors circumvent the Constitutional rights of individuals. Rather than protecting the public interest through objective investigation of criminal activities, they have been used as tools to harass political and social activists' groups and individuals. H.R. 6006 would return the Federal Grand Jury to its proper role while also ensuring its independence from external manipulation.
H.R. 6006 ensures that all of the members of Federal Grand Juries are aware of their duties and powers. It provides that the district court must inform the Members of the Grand Jury of all of the powers of the Federal Grand Jury. For example, the Grand Jury must be told of its authority, upon the affirmative vote of 12 or more members, to subpoena witnesses and to apply to the court for a grant of immunity for a witness or for an order directing an advocate witness to show cause why he should not be held in contempt. This legislation also requires that the district court inform the Grand Jury members of the subject matter of the investigation, the necessity of sufficient evidence to form the basis of an indictment, and the Grand Jury's duty to determine, based upon the evidence before it, whether sufficient grounds exist for issuing an indictment. Although such in. formation concerning the duties and rights of Federal Grand Juries is certainly essential to their functioning, a disturbing number of former Grand Jurors have stated that they were not provided with such information. A Grand Jury which is not completely informed is most vulnerable to error and to manipulation by prosecutors.
H.R. 6006 ensures that the Federal Grand Jury will be fully informed by providing that any person indicted by a grand jury that has not been properly instructed is entitled to a dismissal of any indictment of that Grand Jury and of any indictment issued by any other Grand Jury if such other indictment is based on the same transaction or event. This provision will serve as a powerful deterrent to the operation of uninformed and misinformed Grand Juries and will help to ensure that witnesses do not become the victims of such Grand Juries.
A Grand Jury which is fully informed of its duties and powers must also be provided with procedures to safeguard its independence in the accomplishment of its duties and in the exercise of its powers. Under current statutes the court may provide a prosecutor with subpoenas which are signed and sealed but otherwise blank. By filling in the blanks the prosecutor may issue the subpoena to anyone he or she chooses. Too many prosecutors have used this power to subpoena in order to obtain information from persons only peripherally involved in the matter before the Grand Jury. H.R. 6006 provides that at least 12 members of the Grand Jury must determine that a witness' testimony is essential to the investigation prior to issuance of a subpoena. This procedure will give the Grand Jury greater independence in determining the relevancy of potential testimony, and I urge the subcommittee to include this provision in any grand jury reform legislation which you may approve. An active role for grand jury members in the issuance of subpoenas is crucial and will insure that the grand jury fulfills its responsibility as a buffer between the citizen and the prosecutor.
It is also essential that the Grand Jury be provided with legislative guidance to prevent it from exercising its powers at the expense of the performance of its function of protecting individuals' rights. At present, there is no certainty that a witness before a Grand Jury will be afforded even those basic procedural protections of his Constitutional rights which are guaranteed him when he is questioned in a prosecutor's office or in a police station. As a result, Federal prosecutors have at times used the Grand Jury to compel testimony which they are constitutionally prohibited from obtaining by any other means. For example, by manipulation of the Grand Jury, witnesses who are not under investigation as parties to a crime may be jailed for contempt for failing to answer questions which the prosecutor is constitutionally prohibited from asking in any situation other than before the Grand Jury. H.R. 6006 provides a number of safeguards to ensure that the Grand Jury, a body which is designed to protect citizens from abuse by Federal prosecutors, does not itself become a tool for prosecutorial infringement upon individual Constitutional rights,
Under the provisions of H.R. 6006, every witness would receive seven days notice between service of subpoena and appearance as well as notice at the time of the issuance of the subpoena of the matter under investigation, statues involved, and the rights of witnesses before Grand Juries. This notice will provide the witness with time to consult with an attorney who can assist the witness in understanding and exercising his or her rights. The bill further ensures that a subpoenaed witness is fully informed of his or her rights before the Grand Jury by providing that a witness who testifies without proper notice of his or her rights cannot be prosecuted based upon any information obtained from the testimony. A witness who is fully informed of all of his or her rights when testifying before a Grand Jury is in a far better position to exercise and protect those rights than is a witness who is uninformed.
When a subpoenaed witness chooses not to testify before a Grand Jury the Grand Jury may, upon the affirmative vote of 12 members, apply to the court for an order directing the witness to comply with the subpoena. H.R. 6006 provides that such an order may only be issued following a show cause hearing in which the witness is entitled to counsel. A recalcitrant witness may not be imprisoned for refusing to testify if such refusal is based upon questions which violate his or her Constitutional or statutory rights. Similarly, under the provisions of H.R. 6006 a witness may be excused from testifying before the Grand Jury if the court finds that the purpose of the subpoena was to obtain information concerning a person already under indictment, that the appearance would be unreasonable, or that the issuance of the subpoena was punitive. The bill furher provides that a witness may be released on bail during the appeal of his confinement for contempt. These procedures, particularly right to counsel and bail pending appeal, are guaranteed to any citizen who faces possible imprisonment by a court. There is no justifiable reason to deny similar procedural protection to a citizen when he or she is faced with both denial of the freedom of exercise 5th amendment rights and possible imprisonment.
Finally, enactment of any legislation designed to improve Grand Jury procedures and to prevent misuse of the Grand Jury's powers will only be meaningful if Congress and the courts are able to evaluate the effect of the legis. lation. H.R. 6006 provides for annual reports to the Congress and to the Administrative Office of the United States Courts by the Attorney General. Each report must include (1) the number and nature of Grand Jury investigations, (2) the number of immunity orders applied for and granted, (3) the number of contempt citations and periods of confinement, (4) the number of arrests, trials and convictions resulting from immunity orders and (5) a description of information systems used. The annual report will provide Members of Congress with the information they must have in order to prevent future prosecutorial abuses of the Grand Jury system,
Reform of the Grand Jury system is essential if Grand Juries are to effectively perform their unique and valuable role in our system of justice. I urge this Committee to make this reform a reality.
STATEMENT OF HONORABLE TOM RAILSBACK ON GRAND JURY REFORM Mr. Chairman, I congratulate you and the Members of the Subcommittee on Immigration, Citizenship, and International Law, for beginning these hearings on the crucial subject of grand jury reform. Of course, the grand jury has been a part of our legal system since the adoption of the 5th Amendment to our Constitution which guarantees that citizens will not be prosecuted unless and until a grand jury is willing to return an indictment against them. However, we must never be afraid to examine whether the various parts of our governmental system, particularly our criminal justice system, are working properly, or whether their purposes have been distorted.
This Subcommittee has now begun such a study, and I am pleased to have co-sponsored one of the several bills which you are considering, H.R. 6006. I understand the Department of Justice has submitted its position--generally in opposition to most of the grand jury reform proposals which have been made either in my bill or other bills and have presented detailed arguments in support of their position. I urge the Subcommittee to carefully consider those arguments so as to give the most thorough analysis to each suggested reform. It is only through such a process that any reform which is finally adopted, will operate to the benefit of our system of justice rather than merely representing popular, but not necessarily workable, reform. I feel that particular emphasis should be given to those provisions of proposed legislation dealing with the rights of individual grand jury witnesses. The rights of the individual in all phases of our society have become of increasing concern as our society has become more complex. Appearance before a grand jury can be a frightening experience in a forum which can be totally unfamiliar to the average citizen called to testify. Without adequate time to prepare for such an appearance, and to obtain appropriate legal advise, a witness could end up in legal difficulty himself based on his grand jury testimony, due to his lack of knowledge and experience as such a witness. This could happen despite the fact that the original reason the person was called to testify was not as the “target" of the investigation, but merely as a witness to provide back-ground information.
The Subcommittee should be aware that in my home State of Illinois, we have a statute which specifically allows the "target" of an investigation to have counsel present within the grand jury room, and to consult with counsel during questioning. I would strongly urge the Subcommittee to invite witnesses-both prosecutors and defense counsel—with specific experience under the Illinois statute to present their views to the Subcommittee on how their system is working
Your careful analysis should also include the matter of appropriate ways to deal with recalcitrant witnesses. You should determine whether incarceration beyond six months has occurred, and whether such incarceration ultimately produced meaningful grand jury testimony.
In summary, I feel those proposals dealing with individual rights should be carefully examined, considering the arguments on al sides of the various issues. I am sure that out of the various positions put forward can come meaningful reforms which can protect the rights of individuals called before the grand jury, without critically impinging on the proper and effective functioning of grand juries.
Again, I wish to congratulate the Subcommittee for beginning this series of hearings and I look forward to working with you in the future to develop meaningful reforms of this basic part of our criminal justice system-the federal grand jury.
Mr. EILBERG. We must leave now. Pending are amendments to the International Banking Act. I thank you, Mr. Conyers.
[Whereupon, at 1:35 p.m., the subcommittee adjourned subject to call of the Chair.]
FEDERAL GRAND JURY
THURSDAY, AUGUST 26, 1976
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON IMMIGRATION,
Washington, D.C. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2226, Rayburn House Office Building, Hon. Joshua Eilberg [chairman of the subcommittee) presiding.
Present: Representatives Eilberg and Fish.
Also present: Arthur P. Endres, Jr., and Martin H. Belsky, counsel; Janice A. Zarro, assistant counsel; and Alexander B. Cook, associate counsel.
Mr. EiLBERG. The subcommittee will come to order.
This is the fourth in our series of hearings on H.R. 1277, and other bills, to reform the Federal grand jury system.
At our last session, three of our distinguished colleagues strongly supported our efforts to pursue legislation to insure due process and fairness in grand jury procedures. They joined earlier witnesses from the American Bar Association in detailing the deterioration of the Federal grand jury from a constitutional shield against Government harassment to an unregulated weapon of political oppression.
Until now, no one—including the Congress, the Executive, or the Judiciary—has taken the time to fully examine the Federal grand jury system. Courts have reviewed isolated instances of abuse and have, on occasion, remedied them. But the courts do not have the power to detail all the necessary procedures and safeguards. Only Congress can and will.
The Executive, through the Department of Justice, has claimed to have undertaken a comprehensive analysis of the grand jury system. Yet, the Attorney General, in his testimony before this subcommittee, merely recited the same cliches about secrecy, prosecutorial discretion, and delay. By its absolute defense of the status quo, the Executive has abdicated its responsibility for reform. Now Congress should and must act.
This subcommittee is particularly appropriate to consider and propose grand jury reforms. In 1973, we were charged with the responsibility of reviewing the misuse of the Federal grand jury in the Fort Worth Five case. In 1974 the Judiciary Committee acted as a grand jury for the Nation in receiving, reviewing, and acting upon the eviderce of alleged impeachable offenses by President Nixon. In 1975 we