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in public life shall be answerable to someone." That subgovernment is the
prosecutorial arm of the Executive. Far from checking overreaching prosecutorial conduct, the grand jury, with its unique power and secrecy, facilitates it. Prof. Charles Ruff, the Watergate Special Prosecutor, told the Judicial Conference of the District of Columbia last year “that virtually the only restraints imposed on the prosecutor's use of the grand jury are those which he [sic] 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." +
Putting it more graphically Baltimore Judge Charles E. Moylan, a former prosecutor himself, suggests that "the prosecutor can violate or burn the Bill of Rights seven days out of seven and bring the fruits of unconstitutional activity to a grand jury. No court in the country has the power to look behind what the grand jury considers or why it acts as it does.” 5
In theory, of course, the courts do have the power, but they have been loathe to exercise it, escaping instead behind the legal theory of grand jury independence. This see-no-evil posture opened the door to the Nixon administration's 1970-73 grand jury war on dissent and plays a similar role today amidst continuing grand jury abuse. Its underlying mythological assumption—that the grand jury still functions as a buffer-has even been abandoned, at least for a time, by the Department of Justice.
Said then Assistant Attorney General Vincent Rakestraw in September 1974 in a letter to Judiciary Committee Chairman Peter Rodino: "... the grand jury does not operate to protect the individual to any substantial degree." Rakestraw put the Department on record as agreeing with the proven proposition that the grand jury has become nothing more than a prosecutor's tool: “The sole substantial reason for having a grand jury today is to help the attorney for the government when the need arises." (ibid.)
That “need" apparently arose in Ft. Worth four years ago, and the members of this Subcommittee are well aware of the frightening consequences of the "help" federal prosecutors obtained from the grand jury in that case. That same "need", we now know, arose again and again during the Nixon Administration as the political inquisitors of the Justice Department's Internal Security Division targeted over 100 overlapping grand juries against politically active citizens. Thousands of subpoenas were issued, lives disrupted and dossiers filled. Of the indictments these grand juries handed down, only ten percent, a shockingly low figure, resulted in convictions, and some of these were for picayune offenses. It all added up to a hard act to follow.
But the act has been followed, and this is one of the most important points we can leave with the Subcommittee today. While the brazenness and overt coordination that make the Nixonian grand jury inquisitions so conspicuous are gone, political abuse of the grand jury has, if anything, intensified and expanded in the post-Watergate years. The victims vary widely: radicals or activists, aggressive counsel representing controversial clients, public officials from a rival party, newspaper reporters or just plain citizens a prosecutor is determined to "get":
Even more widespread is the simple reality that prosecutors, like the police, will tend to use all those tools and powers they are allowed. To speak in terms of good and bad or scrupulous and unscrupulous prosecutors is to miss this basic element of American political life. There have been and will continue to be differences among prosecutors. Some trample liberties and others try to respect them. But as long as the ability to "burn the Bill of Rights" in the grand jury chamber remains, it will be burned. Even in situations not involving violations of individual rights, it will be impossible to insure an increasingly distrustful and concerned public that foul play is not at hand.
In such a context, relying on either self policing or vague guidelines against misconduct that lack teeth to prevent prosecutorial abuse is, to make a charitable appraisal, foolish. Concluded the New York State Assembly study noted earlier : ?
* Prof. Charles Ruff, "Remarks at the Judicial Conference of the District of Columbia Circuit," Washington, D.C., June 2, 1975. 5 "How To Get Your Man," Newsweek, Dec. 1, 1975. 6 W. Vincent Rakestraw, Letter to Hon. Peter W. Rodino, Jr., September 10, 1974. ? Abuse of Power, op. cit., p. 43.
In two separate and distinct reports, studies were made covering a period of the past 25 years throughout the nation of hundreds and hundreds of cases of prosecutorial abuse. Those studies reveal not one prosecutor has ever been punished, or any form of sanction imposed, no matter
how severe the abuse and no matter how vicious the tactics. A generation ago, the most common solution advanced to end grand jury abuse was the abolition of the grand jury. Today, most observers see reform as a potentially more productive approach, and no measure has been proposed to abolish the grand jury entirely, though many, including the distinguished Chair of this 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 determine the merits of an accusation? 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 decisions is irrefutable, we are convinced that the enactment of reforms could revitalize the shield function. We agree with the Individual Rights Section of the American Bar Association : "While a lay body such as the grand jury is in need of competent legal advice, we see nothing to persuade us that the grand jury cannot serve important legal and civil functions as an independent citizen's body." 8
We also agree with at least one portion of the testimony Attorney General Levi gave before this committee: 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, certainly not what the framers of the Bill of Rights had in mind when they included the grand jury in the Fifth Amendment.
Since the grand jury is part of our Bill of Rights, abolishing its indicting function creates still another problem in our eyes. Do we dare tamper with the Bill of Rights? We have already seen many of its guarantees eroded without formal amendment or repeal. For all intents and purposes, for instance, the Fifth Amendment right to silence no longer applies in the grand jury chamber, nor do other Constitutional protections. Still, formal alteration of any Bill of Rights provision means that the provision cannot be revitalized. It remains within the power of panels such as this one to begin breathing new life back into the provisions of the Bill of Rights, as long as they are enshrined in law. It would be a most serious error, with potentially dangerous consequences, for the Bill of Rights to be altered in any fashion.
Whatever serious consideration may be given to abolishing the indicting function of the grand jury, as a practical matter the amendment process would take years. And while the status of the grand jury's non-protective 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 which 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 illegal evidence, to grill witnesses about anything in the absence of Constitutional restraints and to jail without trial.
It must be a top priority for this Subcommittee to insure that the Congress, in a time of pervasive CIA and FBI spying, break-ins, mail covers, forgeries, Operation Chaos, Cointelpro and God knows what else, remove the political grand jury inquisition from American life. Such inquisitions are often launched
* Report of the American Bar Association House of Delegates from the Section of Individual Rights and Responsibilities, August 1975, p. 6.
without indictments in mind. They leave defenseless citizens battered and the Constitution in shambles.
As we try to share with you our thoughts on the most pressing grand jury reforms, we start with the basic assumption that strong measures are needed to curb a very sick institution. In urging these measures, we are mindful of the need to balance considerations of individual rights and the need to prosecute criminal activity. But in "balancing" we cannot let ourselves be satisfied with procedural safeguards that can be swept aside at will. We cannot settle for prohibitions that can be easily circumvented or violated without even a proverbial slap on the prosecutorial wrist.
Despite alarmist warnings from the Department of Justice, serious grand jury reform will not unduly hamper legitimate grand jury investigations. We ask the Subcommittee to keep in mind the apt analogy Mr. Eilberg has already drawn between the Judiciary Committee's impeachment inquiry and a reformed grand jury system. The impeachment inquiry showed that the investigative/ accusatory process can proceed fairly even with rules of evidence, procedural rights, active lawyers for witnesses and still get the job done.
The question of immunity and the Fifth Amendment is both the most important and most widely misunderstood issue in the entire nexus of grand jury operations. While it is often maintained that immunity laws are indispensable, a permanent feature in American law and perfectly consistent with the strictures of the Fifth Amendment, there is no scholarly nor practical consensus on any of these issues.
First of all, there is a long philosophical tradition that holds that the Fifth Amendment is not just a privilege against self-incrimination, but a right to silence. We agree with the four Supreme Court justices who dissented in the 1894 Brown decision, which upheld a federal immunity statute for the first time. They sided with the District Court, which had warned, prophetically, that if the government were given the power to coerce testimony through immunization, it
... could prole the secrets of every conversation, or society, by extending compulsory pardon to one of its participants, and thus turn him (sic) into an involuntary informer. Did the Framers contemplate that this (Fifth Amendment) privilege of silence was exchangeable always, at the will of the government, for a remission of the participant's own penalties, upon a condition of disclosure, that would bring those to whom he had plighted his faith and loyalty within the grasp of the prosecutor? I cannot think so. .
... This same note was struck in modern times by Justice William Douglas in his brilliant 1955 Ullman dissent: "My view is that the Framers put it beyond the power of Congress to compel anyone to confess his (sic) crimes.” 10
We do not think that the Fifth Amendment can be balanced away, watered down or replaced with something else, whether that something be deemed coextensive or not. When we allow the state to forcibly strip witnesses of their Fifth Amendment rights, we do so at the cost of continuing peril to our freedoms.
The claim that immunity is an integral fixture of our criminal justice system can be dismissed by a single historical fact. Until 1954, there were essentially no immunity statutes in the Federal criminal code." The 1954 statute, promulgated to deal with so-called “Fifth Amendment Communists," was intended, as Senator McCarran put it in the frenzied terms of the day, "to go a long way .. to help expose the Communist conspiracy in this country." The nation had survived without such federal immunity statutes before 1954, and the 1954 statute was aimed at political targets, rather than at crime, per se. This should surprise no observor of the use of immunity in the 1970's.
If forced immunity is philosophically suspect and a product of knee-jerk Cold War anti-communism, is it at least, as the Justice Department maintains,
YU.S. v. James, 605 F. 257 at 264.
11 Before 1954 immunity was a regulatory phenomenon. There was a general immunity act applicable to judicial proceedings passed in 1868, but this was practically never invoked and later made meaningless by the Supreme Court's 1892 decision in Counselman v. Hitchcock, 142 U.S. 565. On immunity history, see especially Comment, "The Federal Witness Immunity Acts in Theory and Practice : Treading the Constitutional Tightrope," 72 Yale Law Journal 1568 (1963).
absolutely necessary? Mr. Levi certainly thinks so. Said he, June 10, before this Subcommittee :
One might wish that our society were so structured that the investigation of crime could rely solely upon the wholly voluntary cooperation of citizens. But it is not and has never been. If the grard jury is to perform its historic function of investigating crime and returning only well founded indictments, it must have available to it compulsory process and the testimony of witnesses
who sometimes are themselves involved in the matters under inquiry. No reform proposal before this Subcommittee has suggested abolishing compulsory process-subpoena power, though subpoena regulation is definitely needed. So what Mr. Levi is left with is the assertion that in order to obtain the testimony of people who may themselves be implicated in a crime, forced immunity--the power of the government to demand testimony on pain of incarceration-is necessary.
But the government already has a tremendous coercive power, the threat of indictment, and the Department of Justice has never been able to document the claim that the threat of jailing for contempt is any more potent than the threat of jailing for a crime. Moreover, in his testimony, the Attorney General continually based his arguments against reform on organized crime-related concerns. Yet he and the Department duck the most important application of the organized crime argument. If the underworld code of silence is such that the threat of conviction will not make an underling cooperate out of fear, then obviously the relatively minor coercion of contempt will add nothing. What forced immunity dues is give the prosecutor a way to jail targets without bothering with due process. That is all it does, and it is wrong.
Any legitimate grand jury investigation--that is, a probe based on evidence, not a fishing expedition--can be well served by the "consensual immunity" provided for by H.R. 11660 (an updated version of 2986) and H.R. 11870. This concept would allow the immunity exchange, non-prosecution for testimony, to be made, but only with the consent of the witness. In reality, consensual immunity is already used. Witnesses like John Dean in the Watergate scandal have not had to be forcibly immunized in order to get them to talk. They welcomed immunity.
The abolition of forced immunity, more than any other single reform, would reduce the fear of the grand jury process that many freedom loving Americans share, without hurting law enforcement.
If we might borrow an image from Hollywood's treatment of organized crime in The Godfather : though the government says it is fighting organized crime, it is the prosecutor who, using immunity, often acts like a Mafia don, making offers that people cannot refuse.
Forced vs. consensual immunity is far from the only immunity issue effective grand jury reform should address. Several other related issues emerged from the hasty passage of the Organized Crime ('ontrol Act of 1970, the enabling legislation for the Nixon grand jury war on dissent. The most notorious provision of the 1970 Act has been derivative use immunity. While we applaud criticism of use immunity and certainly support the return to transactional immunity as proposed by H.R. 1277 and other legislation now under consideration, use immunity in itself has not turned out to be the most destructive and dangerous aspect of the 1970 Act. As the Department of Justice pointed out in its memorandum, the Department has rarely attempted to prosecute witnesses given use immunity. And David Austern, representing the American Bar Association before this Subcommittee, has subsequently asserted that such efforts to prosecute have been largely unsuccessful. While the opportunity should be denied in the future, other aspects of the 1970 Act need more attention.
Mr. Fish, the distinguished ranking minority member of this panel, addressed one of the problems in his immunity legislation introducted in the last Congress. His legislation sought to return discretion to District Court judges in the signing of immunity orders, a power that was quitely removed by the 1970 Act. Even if immunity were made both consensual and transactional, further checks on the granting of immunity, to prevent the utilization of unreliable testimony and "immunity baths”, are needed, especially since the frequency of immunization has ballooned since 1970, We feel that either the court or the grand jury involved should be able to halt the granting of immunity. Whether a witness
19 Statement of Hon. Edward H. Levi, Attorney General of the United States, before the House Judiciary Committee Subcommittee on Immigration, Citizenship and International Law on Grand Jury Reform, June 10, 1976, p. 12.
should be trusted, let off the hook or, if forced immunity is to be continued, compelled to face imprisonment for noncooperation is much too important for only an unaccountable Justice Department to decide.
Prior to 1970, the number of offenses where immunity was applicable was at least somewhat limited and tied to 18 U.S.C. Ch. 119. In those serious crimes where wiretaps were deemed permissible, so were immunity grants. We urge a return to this pre-1970 situation, particularly, if Congress should not enact consensual immunity. If immunity is not to be voluntary, it must be limited to serious crimes.
CONTEMPT Four legislative proposals before this Subcommittee, including the most recent grand jury reform bill, H.R. 14146, introduced by Subcommittee Member Ms. Holtzman of New York, would limit jailings for contempt to six months and ban reiterative contempt. These reforms, like so many others, are long overdue. The power to confine recalcitrant witnesses virtually forever encourages witchhunting and vindictive reprisals and makes a mockery of Supreme Court stipulations that anyone facing more than six months of incarceration is entitled to a jury trial.
As written in H.R.s 1277, 6006, 2986 and 6207, however, the ban on reiterative contempt contains a serious loophole. By not specifically including criminal contempt, the language of these bills would allow prosecutors to sidestep the intent of contempt confinement reform by switching from civil to criminal contempt or vice versa. The more specific language of H.R. 14146 and H.R. 11660 would plug this inadvertent loophole.
If we are indeed serious about giving grand jurors an active role to play, then no request for a contempt hearing should be allowed unless a grand jury ma jority feels that a witness' refusal to testify was unjustified. A provision of H.R. 11660 speaks to this point.
RIGHT TO COUNSEL Giving witnesses the right to representation by counsel in the grand jury chamber is so necessary and just and supported so widely as to make opposition to it seem a last ditch and desperate stand. It has led the Department of Justice to offer the spurious and disingenuous argument that it opposes having counsel in the room in order to protect the witness from other clients of his or her attorney "who might wish that the investigation be thwarted."
As the ABA has pointed out, having counsel in the room will not increase, but rather diminish delays and certainly increase the quality of legal advice the witness gets.
Moreover, the presence of counsel can prevent the badgering of witnesses by prosecutors and spur greater grand juror independence. It has not been uncommon for prosecutors to harass witnesses when they have sought to leave the grand jury room for consultation with their counsel or to attempt to portray witnesses who want to see their attorneys as having "something to hide.”
Opponents of this reform always seem to trot out the nostrum that a grand jury hearing is not an adversary proceeding. The presence of witness counsel in the grand jury room would threaten procedural chaos, or so we are told. Who would decide the merits of a defense attorney's objection? Interestingly, the absence of a judge in the grand jury chamber has never been a source of worry for such skeptics as long as prosecutors have been free to manipulate and twist proceedings as they wished. Nor have clashes between witnesses and prosecutors necessitated the presence of a judge. It would be no different if counsel were present and actively participating. Then as now, unresolved conflicts over contemptuous behavior or legality of questions would be taken before the court. The difference is that the grand jury would get to hear other input--a value in itself--and prosecutors would be more inhibited from engaging in bullying and other unethical, unconstitutional conduct.
RECORDING GRAND JURY PROCEEDINGS It is absolutely necessary, in order to curb prosecutorial abuses and insure fairness, that a complete record of everything said in the grand jury room, with the exceptions of the jury's own secret deliberations and attorney-client consultations, be kept. While simply recording the question-and-answer sessions with witnesses is a step in the right direction, if the record is to be a meaningful reflection of what actually went on inside the grand jury chamber, all