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undertook a comprehensive study of all State grand jury laws and of the numerous Federal cases describing grand jury abuse.
I began my legal career as a prosecutor in Philadelphia. I saw, firsthand, the unchecked power of the Government attorney over grand jurors and grand juries. As a private practitioner, I learned both directly, and indirectly through my professional colleagues, of the problems of representing grand jury witnesses and potential defendants. As a legislator, I have seen that investigations can be undertaken and witnesses questioned while still insuring fair and open procedures.
As chairman of the subcommittee, I can see the Federal grand jury reform is not only possible—it is essential.
Our witnesses today will be able to detail for us the abuses of the grand jury system that they have studied, recorded, and experienced.
And we welcome first Ms. Judith Avner, codirector of the Coalition To End Grand Jury Abuse, together with David Rein, president of the Coalition To End Grand Jury Abuse.
TESTIMONY OF JUDITH I. AVNER, CODIRECTOR, COALITION TO END GRAND JURY ABUSE, ACCOMPANIED BY DAVID REIN, PRESIDENT
Ms. AvNER. Mr. Chairman, before I begin I would like to submit our somewhat lengthy statement for inclusion in the record and read a shorter one, at the conclusion of which, we would be glad to answer questions.
Mr. EILBERG. You would like to submit now the original statement which you submitted earlier ?
Ms. AVNER. Yes.
Mr. EILBERG. We will make that part of the record and go along with your request.
I might say in passing that I have read your statement, and I see that a lot of work has been done and it is a very thoughtful and helpful statement.
Ms. AVNER. Thank you.
My name is Judith Avner. I am the codirector of the Coalition To End Grand Jury Abuse, a broad grouping of 20 national bar, civil liberties, religious, women's, and labor organizations. United in an effort to educate the American people about the grand jury's democratic potential and frightening perversion, our member organizations have distinctive perspectives, insights, and suggestions to share with this subcommittee. Hopefully, representatives of many of these organizations will appear before you during the course of these hearings.
With me is the president of the coalition, David Rein. Mr. Rein has been a member of the bar since 1935 and has practiced law in the District of Columbia for the past 30 years. Through those years, he has had many experiences of grand juries which he would be glad to share with the committee.
Although we may differ in our views of the remedies required to cure the ills of the grand jury, no observer could help but agree that the distinguished chairperson of this subcommittee has already made a historic contribution to grand jury reform, both by introducing the first legislation against grand jury abuse and by initiating these hearings. He deserves the gratitude of those who understand that liberty and the current functioning of the grand jury cannot coexist.
It is for this reason that we were indeed horrified by the testimony of Attorney General Levi given here on June 10. In light of the barrage of criticism leveled against the modern grand jury, the refusal of the Justice Department to relinquish any of its prosecutorial prerogatives is truly an affront to the American people.
A generation ago, the most common solution advanced to end grand jury abuse was the abolition of the grand jury. Today, most critics see reform as a potentially more productive approach. No measure has been proposed to abolish the grand jury entirely, though many, including the distinguished chairperson of the subcommittee, have proposed terminating the grand jury's indicting function.
Any differentiation between the grand jury's indicting and investigative functions does, however, trouble us. We see these two functions as necessarily interrelated, and separating out an indicting from an investigative function and then leaving only the latter intact would, it seems to us, ignore the constitutional justification for the grand jury's investigative function. To indict is to investigate. How else can a grand jury independently judge the sufficiency of an accusation if it does not have the power to answer its own questions about the merits of the Government's case? With the Federal grand jury there has never been an investigative rationale independent of the indictment function.
The grand jury's indicting role, to be sure, is today more form than substance. But while the fact that grand juries regularly rubberstamp prosecutorial decision is irrefutable, we are convinced that the enactment of reforms could revitalize this invaluable shield function.
We agree with at least one portion of the Attorney General's testimony: The grand jury should afford our citizenry an important opportunity to participate in the criminal justice system. For this reason, too, we oppose abolishing the indicting function of the grand jury, though its current form, naturally, hardly constitutes effective participation. Merely being part of what one attorney has called an oil painting in the background of a prosecutorial operation is not what we mean by citizen participation, and certainly not what the generation of 1776 had in mind when it included the right to a grand jury indictment in the fifth amendment.
While the status of the grand jury's nonprotective shield function is an important issue, the use of the grand jury to trample on the very liberties it was meant to protect is perhaps a more pressing one-one with implications that go to the heart of the survival of liberty in America. In our view, there is no process or institution in America today more potentially destructive than the unregulated, unchecked, unbalanced grand jury inquisition. With it prosecutors and often police agencies have the power to compel the appearance of any person anywhere at any time, to introduce illegally seized evidence, and to grill witnesses about anything in the absence of constitutional restraints and to jail without trial.
The current Federal immunity provisions, procedures and practices are, without a doubt, a keystone of grand jury abuse. Our prepared
remarks discuss the immunity issues extensively, but there are some points about immunity we would like to emphasize here this morning :
1. Every Federal immunity law enacted has been the product of unique special circumstances or hysteria, sometimes both;
2. Federal immunity has yet to deliver the indispensable crime fighting results its supporters continually claim; and
3. most importantly, in instance after instance the current Federal immunity statute has been used to debase and circumvent
fundamental liberty. We totally and enthusiastically support, Mr. Eilberg, your proposal to put to rest the current “use" or "testimonial” immunity statute. Combined with guidelines which meaningfully define the circumstances in which an immunity grant can be approved, this reform will undoubtedly reduce the indiscriminate invocation of immunity.
But we fear, however, that the abolition of use immunity will not prevent the grand jury witch hunts we have seen in Fort Worth, Lexington, New Haven and so many other cities. For example, feminist activist Jill Raymond, who recently spent 14 months in Kentucky jails, would have spent the same time behind bars under a transactional immunity statute.
It is for this reason that we feel that only making immunity both transactional and consensual can guarantee the public good and the individual protection. By consensual, we mean that a witness must want a "grant” of immunity before it can be ordered by the court. Will consensual immunity make serious investigation impossible? We doubt it. A look at actual Justice Department practice shows that the Department already makes use of what is, in essence, the consensual immunity we are talking about, even in its most important cases. Look, for example, at the ongoing Justice Department investigation of the FBI's illegal break-ins. According to unrefuted news reports, Justice Department investigators have a group of 30 present and former agents under intense scrutiny. Also according to news reports, the Justice Department is "negotiating” with several of these suspects who want to exchange their testimony for immunity: “Negotiating?" The Justice Department doesn't have to negotiate. It has the necessary power to pick any FBI suspect it pleases and force him to answer the questions the Justice Department wants answered on pain of jail. But in this investigation, the Department is not forcing immunity; it is trading it, and the Department must believe this practice will work. In urging the substitution of consensual for coercive immunity, what we are asking, in effect, is that all Americans be extended the same considerations these FBI agents are now receiving.
In addition to immunity reform, this subcommittee has before it a wide range of procedural reforms that run the gamut from allowing a witness to have counsel inside the grand jury chamber to requiring that a complete transcript of grand jury proceedings be kept, to imposing relevancy requirements on questions asked, to prohibiting the use of illegally seized evidence in the proceedings. These and the other rights the various bills inject into the grand jury process are rights all Americans are guaranteed in other stages of the criminal justice process. These protections should exist in the grand jury for the same reason they now exist elsewhere: to insure decency and
fair play; to prevent heavyhanded treatment to those in a superior position.
Against these procedural reforms we hear one recurring argumentthat guaranteeing these rights inside the grand jury chamber would turn grand jury proceedings into a minitrial.
The implicit assumption behind this argument is that since every accused person is entitled to a public trial in which due process safeguards are meticulously observed, extending these sa feguards into the grand jury process would merely be wasteful duplication. In other words, if a person should be wronged by the grand jury, the trial jury can always set things right.
We submit that this reasoning is just plain wrong. Standing trial is an ordeal that even an eventual verdict of not guilty can never erase. The authors of the Bill of Rights knew this. They knew that even an acquitted defendant is condemned to live forever under a cloud of suspicion. They knew that standing trial drains an individual's emotional and financial resources, and they were determined to make sure no citizen suffered this experience unless a panel of his or her neighbors decided, fairly and without malice, that the accused might very well be guilty of having committed a crime. Prosecutorial misconduct that would encourage a biased petit jury verdict is not tolerated in our system of justice, neither should prosecutorial misconduct that encourages a biased grand jury determination.
Whether protecting citizens from such prosecutorial misconduct inside the grand jury chamber wastes time or not is completely up to prosecutors. As long as they behave honorably-seek justice and not convictions, to paraphrase the American Bar Association—the grand jury process will move along expeditiously.
The addition of the procedural rights and protections provided for in the measure under consideration would not create a minitrial. Rather, these rights would create a full-fledged grand jury.
Mr. Chairman, last week I had the opportunity to attend a series of seminars on trial techniques sponsored by the American Trial Lawyers Association. In the course of one of the presentations the speaker had cause to remind the audience of a recent survey where a copy of the Declaration of Independence was presented to people on the street, and they were asked to sign it. I am sure you remember the reactions. Most people had no idea what the document was. Those that saw fit to make comments said that it was subversive, that it was a communist plot, that it was revolutionary, and a series of other things.
In such an atmosphere, the speaker went on to add, were the Bill of Rights to be presented to our current Supreme Court, the Court would no doubt see fit to declare the whole thing unconstitutional.
This is a pretty sad commentary on our society and on our belief and faith in the institutions that govern us. And what this says to us is that this panel and the Congress bear a very great responsibility. In the area of grand jury proceedings we have seen that the courts have been loathe to exercise their supervisory power over the grand jury process, and the executive branch, as you know, has given no indication that it plans in any way to alter its current mode of conduct. It is incumbent, then, upon this panel and upon the Congress to fill this void and restore integrity to the grand jury process.
[The prepared statement Judith I. Avner follows:]
STATEMENT OF JUDITH I. AVNER, Co-DIRECTOR, COALITION TO END GRAND JURY
Many historical forces and trends and thousands of contributions, both negative and positive, have created the modern grand jury and brought all of us here together for what represents the first comprehensive Congressional examination of the grand jury in the history of this Republic. Many may differ in their views of the remedies required to cure the ills of the grand jury, and even over what those ills are. But no reasonable observer could help but agree that the distinguished chair of this Subcommittee has already made an historic contribution, both by introducing the first legislation against grand jury abuse and by initiating these hearings. He deserves the gratitude of those who understand that liberty and the current functioning of the grand jury cannot coexist.
My name is Judith Avner. I am the co-director of the Coalition to End Grand Jury Abuse, a broad national grouping of 20 national bar, civil liberties, women's, religious and labor organizations. United in an effort to educate the American people about the grand jury's democratic potential and frightening perversion, our member organizations have distinctive perspectives, insights and suggestions to share with this Subcommittee, and representatives of many of these organizations will be appearing during the course of these hearings. The testimony we are offering today is based on the Coalition staff's three years of work, study, research and writing, as well as countless discussions with people concerned about the grand jury quagmire: jurors, prosecutors, judges, victims, attorneys and average citizens.
We are mindful that this committee must sift through an extensive amount of material, that many witnesses will be heard from and that the staff of the committee has been diligent in amassing documentation and evaluative material on grand jury problems and reform proposals. Therefore, we will try to limit our testimony to a few essential points and ask that a number of supportive documents and articles to included in the record.
While we will avoid an extended historical sketch of the grand jury, we would like to begin our discussion by stressing one simple but critical point. The grand jury became part of the Fifth Amendment to the United States Constitution for only one reason: to protect our rights from the zeal of tyrannical authority. The institution was included in the Bill of Rights, as one judge has put it, “by its shield, not by its sword." I
The reason the generation of 1776 considered the grand jury so essential has often been misunderstood, most recently by the Department of Justice on June 10. Writing about the proposals advanced by Chairman Eilberg and others for a permanent mechanism by which grand juries could enlist special prosecutors, the Department's Office of Policy and Planning, in a memorandum submitted to this panel declared that “self-policing should be demanded of government, not mistakenly dismissed as an unattainable goal.” Placing policing in hands other than the government's own, it was warned, would promote “the very loss of confidence in the institutions of government it is proposed to prevent."
Yet the very point of the grand jury as an element in our system of checks and balances is the precise opposite. By putting the policing power over the accusatory function in the hands of an independent body--the grand jury—the framers of our Bill of Rights displayed the understanding that the only true way to build confidence in government was to insure accountability by having such independent checks.
The grand jury check, for all practical purposes, no longer exists. Robert H. Jackson, former local prosecutor, U.S. Attorney General, Nuremberg prosecutor and Supreme Court Justice, noted years ago that “the prosecutor has more control over life, liberty and reputation than any person in America.” ? A New York State Assembly Codes Committee report starkly updated Justice Jackson's point last May : 3
Peculiarly, there exists only one sub-government anywhere in this nation . . . which has no controls, no accountability, which is free to do as it sees fit, when it sees fit, and how it sees fit. It lives in its own historical entity and totally defies Thomas Jefferson's immortal dictum that "everyone
10.8. v. Cor, 342 F. 2d 167 at 186 (5th Cir. 1965).
? Abuse of Power, Report of the New York State Assembly Codes Committee : Albany, N.Y., 1976. p. 76.
3 Ibid., p. 2.