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with them, let alone give de
teated answers to their que prosecutors unprecedented
tions. Thus they had to rely leeway, since it means, for
on techniques of infiltration the first time in legal history,
covert investigation that an immunized witness
Those tactics had worked may eventually be prosecuted.
when they were applied to the Giancana, if he had been
highly bureaucratized Comgranted "use immunity," still
munist party of the nineteencouldn't have been indicted
fifties, which was relatively on the basis of his own testi
easy to infiltrate. But they mony. Nor could the informa
were inapplicable the tion he supplied have been
more amorphous, free-floating used in interrogations of other
movement of the nineteenwitnesses to obtain informa
sixties and seventies (whose tion that would, in turn, be
customs, like the beavy used in questions that might
use of dope,
were often trap him. But if the Gover
antithetical to the habits ment had obtained incrimi
and values of people who nating information from an
worked for the F.B.L.). The independent source from a
grand juries, then, were a witness whose name be hadn't
perfect supplement to the mentioned or a question his
agents' work: They furnished testimony hadn't suggested
the prosecution power to subthen he could have been in
poena witnesses and jail those -cluded in an indictment.
who refused to tak. They In its Congressional testi
could succeed in precisely mony supporting the expand
the areas where the F.B.L was ed powers of the special Fed.
failing. They provided the eral grand juries, the Justice
perfect tool for court ordered Department emphasized the
inquisitions. role they would play in fight- Two defense lawyers, Frank ing organized crime. Aside
Donner and Eugene Cerruti, from the Giancana case, there
contend in a recent Nation was ample precedent for that
article that the Justice De point of view. At a conference
partment is trying to estab on grand furies sponsored by
lish • "grand-jury network the Committee for Public
whose point is not so much Justice in the spring of 1972
to solve specific crimes as to Edward Shaw, who as part of compile dossiers on as many the U.S. Attorney's office has dissenters and activists as handled organized crime cares possible. Donner and Cerruti In the Southern District of
assert that department New York since 1963, said:
computer contains all domes"In case after case, it is only tic political intelligence. And after subpoenaing witnesses they say that the computer, before the grand jury and which has unlimited filing and compelling the testimony of
cross-fling potential, somefringe participants that the times determines what witprincipal offenders can be
nesses are called and what brought to trial." So the questions are asked. grand juries have become a Officials of the Justice De boon to modern mob-busters.
partment deny the DonnerBut, unexpectedly, they also Cerruti charge about comprovided a means of strength- puters and dossiers, but they ening the already symbiotic firmly endorse the idea that relationship between the Fed.
the juries should be used to eral prosecutors and F.B.I. extract information the F.B.L. agents who were assigned to can't obtain. In a recent interkeep tabs on left-wingers. view, A. William Olson, then
Often the agents couldn't head of the department's get the information the prose- Internal Security. Division, cutors wanted. They had no saw nothing wrong with the legal means of compelling use of the grand jury as a people they visited to talk tool to develop broed informa
tion for the Government. I inforces the contention that asked him how he felt about the grand jury is an extension agents threatening people of the F.B.L. "In many cases who would not divulge in- you go into an investigative formation voluntarily with grand jury with only a susgrand-jury subpoenas. (Such picion that criminal laws have a situation is not a mere pos- been violated. And sometimes sibility. It happened to the As the grand jury progresses well-known New York lawyer you get bits and pieces. And Arthur Kinoy when he refused sometimes they fit in not with to divulge his daughter's what you started out to in whereabouts. Burton Caine, a vestigate, but with other Philadelphia lawyer, told The crimes, not necessarily in the New York Times the bureau same jurisdiction." had threatened to bring a cli- Witnesses, then, are "bits ent of his before the Harris and pieces," people branchbugs grand jury "and prose- office agents have spotted as cute him for a major crime" potential leads. A witness may if he didn't tell all he knew be a friend of a suspector about the theft of documents
someone whose name has from the F.B.L's branch office bubbled into the conscious. in Media, Pa.) I also asked ness of an informer like Boyd Olson about the propriety, Douglas, whose testimony was during grand-jury proceed- the heart of the Government's ings, of Government prosecu. case in the trial of the Har. tors consulting F.B.I. agents risburg Seven, or someone about the questions that whose name was mentioned should be asked of the in a wiretapped conversation, witnesses.
Someone, in other words, who In Olson's view, such be- is only peripheral to the radihavior is perfectly proper. He cal movement, like Sue Sussacknowledged that traditional man, who volunteered to work intelligence techniques are with the Harrisburg Defense often ineffective wben used to Committee shortly after Fa. probe the affairs of today's ther Philip Berrigan, Sister activists.
people," Elizabeth McAlister and their he said, "have to-styles co-defendants were indicted that are very hard to Infil Two weeks after she became trute. And they're very dis involved with the committee, trustful of outsiden" So, it's the FBI. began to suspect often necessary to convene an that a co-worker who had just tovestigative grand jury. And become her friend had been once such proceedings are involved in an abortive alunder way, Olson wald, he is tempe to steal files from an "sure that the prosecutor F.B.I. office in Garden City. would work closely with the L I (The raid took place after F.B.I. agent during the time the one in Media, Pe. The raidthe grand fury was convened ers evidently hoped to find a so that he'd be able to ask the cache of documents that would witness the proper questions describe the bureau's activiand to evaluate his answers. ties in New York State.) In conducting a grand jury. Sue Sussman was sumthe Attorney General and the mroned to testify and had to F.B.I. are part of a team solv- spend a week sitting in Man. ing a crime. They're organs of hauan's Federal Building be the Justice Department." fore the investigation was
Olson's description of the blocked by a technicality in. way witnesses are selected re- volving the legal definition of
The Internal Security Division's function was recently transferred to the Criminal Division of the Justice Department, and Olson was replaced by his deputy suis ant, Kenta Maroney. Spoleunen for the department assert that the ship does not indicats may change in policy, but is instead the result of the new White House Gestire lo streamline the federal bureaucracy. Soms independent observen of the tepartment speculate that the shift also resulted from declining Administration letterent domestic wbrenion; however, the new Internal Security unit of the Criminal Division had the wome budget and come star (except for Olon) that the 1.S.D. Med reparate catity, and Maroney confirms that his group will continue to investigate politically motivated crimes and to un grand junes as it has in the pent. Most recently, the unit's lawyen bave been holding grand-jury sessions on the Vest Court to develo, information about the weatherman faction of the Student for a Domocratic Society
N head of the unit,
captives by their mug shots
The witnesses that Goodtheft. And though she didn't names came up in the context
win, or any other U.S. attorhave to make the difficult de of gossipy, marginal com
ney, subpoenas are legally for
bidden to have their lawyers cision to testify or risk con- ments.
with them in the grand-jury tempt, the experience did give her bome serious thoughts: To
the grand-jury investigation with the intention of bringing a second, superseding indict. ment. But some of his ques. tions had nothing to do with dynamite. Since witnesses are not allowed copies of their own testimony in the jury room (though prosecutors get those transcripts immediate ly), these samples of Goodwin's questions which were first published by Donner and Cerruti in The Nation, Jan. 3, 1972—come from rough notes the witnesses made:
"Tell the grand jury every place you went after you re. turned to your apartment from Cuba, every city you visited, with whom and by what means of transportation, and whom you visited during the time of your travels after you left your apartment in Ann Arbor, Mich., in May of 1970."
"I want you to describe for the jury every occasion dur. ing the year 1970 when you have been in contact with, at tended meetings that were conducted by, or been any place where any individual spoke whom you knew to be associated with or affiliated with the Students for a Democratic Society, the Weather man, the Communist party, or any other organization advocating the overthrow of the United States, describing for the grand jury when the incidents occurred, who was present, and what was said by all members present there, and what you did at the times you were in those meetings, groups, Associations or conversations."
OST of the ju- room. If they want to consult her the price of chance
ries that in- with counsel, they must friendship with resister vestigate politically motivated do so in the corridors of the turned out to be potentially
crimes are directed by a Federal Buildings where the very high. She has continued cadre of about a dozen Jus- investigations are usually
tice her friendships with members
Department lawyers held, and they must first ask of the resistance community.
headed by Guy Goodwie, a the prosecutor's permission. but she can see how
ar of controversial ex-Democrat The questions that they are the grand jury might make from Wichita, Kan. Despite its
asked are often especially others wary of forming such size the group has performed puzzling because their relafriendships in the future.
a Herculean chore. Between tionship to the specific crime Sometimes freak accidents 1970 and January, 1973, it
under investigation is often can cause torrents of names to
had presented widence to quite tenuous. (When asked cascade through F.B.I. offices
more than 100 grand juries about such questions, A. Wiland into Justice Department
in 36 states and 84 cities. It liam Olson said, "I don't see files. For example, in April,
had subpoenaed between anything wrong with fishing 1971, 25 people were sub
1,000 and 2,000 witnesses expeditions, as you call them. poenaed to appear before (not people charged with
I think we would be remiss if the grand jury In Harrisburg. substantive crimes, but simply
we didn't try to solve crimes.") Many witnesses, who came those who might know a fact
For example, in October, from as far away as Boston
or two that could lead to an 1970, shortly after Goodwin and Chicago, couldn't figure indictment) and compelled
became head of his group, be out what relationship they
them to testity under oath. subpoenaed five young activhad to one another or to the Hundreds have chosen to
ists from Venice, Calif., to case. A year later, during the stand mute. About 30 have testity before a Tucson grand trial, it became clear that the been cited for contempt of
jury shout an alleged purchase Justice Department thought court. The juries have pro
of dynamite. The subpoenas they might yield "bits and duced an estimated 410 in- were issued after an indictpieces" because they had all
dictments. Since many of their ment against the man who been mentioned in the Berri
cases haven't come to court had supposedly bought the gan-McAlister correspondence yet, it's still too early to tell
dynamite had been issued. that Boyd Douglas turned the proportion of indictments
Goodwin justified that by over to the F.B.I. Most of their to convictions.
saying that he was continuing
At first, all of the witnesses refused to answer those ques. tions, and spent five months in a Tucson jail for contempt of court. They were freed when the jury's term expired. But as soon as a new one was convened Goodwin subpoenaed them again (as Betar and Schippers had unsuccessfully sought to do in the Giancana case when Ramsey Clark was Attorney General). They were asked the same questions with the same threat of imprisonment. At that point, three of them buckled and testified.
In the past six months, journalists and scholars have joihed members of organized
call that never, from the day he was subpoenaed to the day he was jailed, did he know why he was called to testify. He knew Daniel Ellsberg, but was out of the country dur. ing the whole Pentagon Pa. pers controversy.
During his hours in the jury room, Popkin said, "I was very concerned with the whole power of insinuation the progecutor had, and with the way he would influence the jury with that power whenever I tried to assert my constitutional rights. For example, 1 had to keep taking the Fifth Amendment to protect the immunity I was trying to establish. And there were times when I didn't know how to respond to questions, so I had to ask if I could leave the room to talk with my lawyer. Whenever I did something like that on questions that must have seemed very trivial to the jurors, the prosecutor
would snicker and say some-
If the current controversy over the Justice Department's grand-jury strategy is under standable, its focus is also somewhat limited. For those who criticize the political use of the juries speak mainly in terms of an Admnistration attack on dissent. If it is out. rageous to subpoena, immunize and imprison jour. nalists, scholars and political activists, then aren't the same methods outrageous when they are used against the Mafia?
Some of the activists who complain most insistently about a "grand-jury network" will argue, in private, that the
crime and political activists in having to decide whether to testify or go to jail. It has always been true that reporters and academics may be able to find out more about the do ings of criminals or the radical underground than Gov. ernment agents can-they do so by guaranteeing absolute anonymity to their sources of information, and for years their right to do so has been respected in practice.
But in June, 1972, in a 5-10-4 decision, the Supreme Court ruled that Earl Caldwell would have to answer questions before a San Francisco grand jury. (Caldwell never did enter the jury room. But since the panel in question disbanded while his case was in the courts, he never actually had to go to prison.) A few months later, in line with the Caldwell decision, Harvard political scientist Samuel Popkin was cited for contempt for refusing to testify before Boston grand jury investigating distribution of the Pentagon Papers. Peter Bridge of the now-defunct Newark Evening News and John Lawrence of The Los Angeles Times are just two of the reporters who have been jailed on similar grounds.
For many journalists and scholars, the issue is plain: To obey the Supreme Court decision is to violate crucial professional ethics and to jeopardize not only one's livelihood, but also the public's right to know. For a reporter or scholar who betrays one source runs the risk that all his other sources will refuse to confide in him because they perceive him to be a spy or, at least, a very bad risk. So many journalists and scholars have agreed to resist the juries. But it's suddenly clear that a good story can now lead to prison rather than a Pulitzer.
Last spring. Popkin de scribed his experience in the jury room at the Committee for Public Justice's conference on grand juries. In reading his description it is crucial to re
panels should have uncestrained right to investigate the Mafia (or the Watergate Seven). Is it legitimate to jail people who refuse to answer questions about peo. ple who might be smuggling drugs into Harlem, but wrong to pursue the same strategy as a means of discovering who was responsible for the bomb ing of the U.S. Capitol? The current critics of the grand jury system have simply refused to face this issue. They have no consistent answer to the argument that the social benefit of powerful grand furies—the increased potential for fighting crime-is worth the loss of some individual freedom.
The week that Peter Bridge went to jail for contempt of court, Eugene Gold subpoe. naed 600 witnesses to testify about the Mafia in front of a Brooklyn grand jury. That day a "high police officer close to the case" was quoted in The New York Times as predicting that hundreds of those witnesses would go to jail for contempt. Editorials abounded about Bridge's jailing: silence greeted the
The day that Samuel Pop kin went to Norfolk prison for contempt, another Federal judge in Boston jailed Joseph Itrato, a Cambridge night-club owner, for contempt, too. There was no more published evidence that connected Itrato to organized crime than Popkin to the Pentagon Papers. Popkin's sentencing was a front-page story in The Times and the subject of an anguished Thanksgiving Day column by Tom Wicker. Itrato, who was the fifth witness in his grand-jury hearing to go to prison, rated a four-paragraph article in the back of The Boston Globe, and no editorials at all. An extraordinary amount of pressure from Harvard and the rest of the academic community persuaded the Government to discontinue the jury that had heard Popkin. The scholar was released after just seven days in jail. Itrato and
Thomas Jefferson and James
The grand-jury panels were
But the panels always possessed a second, more complex function. Besides the power to ratify indictments, they were often given enor. mous latitude to carry out investigations. In pre-Revolutionary America, and during the Republic's first century, the juries were composed of ordinary citizens (often elected by direct ballot) who investigated delays in bridge construction, for example, or the efforts of large business interests to hoard lucrative frontier land. In the 19th century, it was not unheard of for a grand jury to fire a prosecutor the local political machine had assigned to work with it. so that it could have
The case of the Fort Worth Five
. free hand in investigating corruption. (One Minneapolis jury foreman who did just that, Hovey Clarke, was a hero of Lincoln Steffens's muckrak. ing classic, "Shame of the Cities.")
But by the 20th century. legal theorists had decided that the law was too complex for ordinary citizens. To make sure that
the grand ju ries behaved responsibly, they evolved a "key man" system, whereby ex-grand jurors, city officials, and law-enforcement authorities selected future panelists. Soon the institution became a kind of select Rotary Club for middle-aged, middleclass white men who enjoyed each other's company and rarely challenged prosecutor's decision. Of equal consequence, the juries' power of independent investigation has atrophied. Sometimes they still make trips to local prisons and hospitals, sometimes their recommendations are considered, but in general the institution lacks the power it possessed a century ago. And once the juries' powers of investigation and indictment became indistinguishable, the institution became an important weapon in the hands of the prosecutors whose powers It had been created to check. minutes describing the institution's history. If he mentioned traditions, like the right to fire prosecutors or conduct independent investigations, it was only in passing, Silar recalls. Gerald Hawes of San Rafael, Calif., is a program evaluator for the Department of Health, Education and Welfare's Social and Rehabilitation Services in San Francisco. He was a member of the Marin County grand jury that indicted lawyer Stephen Bingham and six inmates of San Quentin for allegedly conspiring to engineer the jailbreak in which George Jackson was shot. He says that his panel, too, lacked a clear orientation. "All the judge did was to tell us to indict people we considered guilty," he recalls.
When « grand-jury proceeding is highly They were trend pending appeal, publicized, the reluctant witnesses are but only after strenuous lobbying by their usually treated with some care. But many lawyers, Paul O'Dwyer and Frank Durkan, cases have been relatively unpublicized, and after Congressmer: Mario Biaggi, and they've had a profound effect on the Lester Wolf! and Peter Peyser intervened lives of people who lack the resources to in their beta!! withstand their financial and emotional During their first six weeks in jail they cost. For example, in 1972, the Treasury weren't allowed to telephone their families. Department began to investigate the ship. Two of them lost their jobs. The bus ment of illegal arms to Northern Ireland, driver's wife had a miscarriage. One of In March, they turned the information they the male nurse's sons, a 7-year-old, had developed over to the Justice Depart. suffered severe anxiety because he thought ment. That month, Justice ordered wit. his father was dead nesses from the New York area (including In Jan., 1973, a U.S. Court of Appeals a male nurse, a real estate salesman, a bus ruled that the men were required to testify, driver, a carpenter and a housepainter) to and after six months of nervous freedom, be in Fort Worth, Tex., within 48 hours of they were jailed again. This time they were receiving their subpoenas.
forbidden to contact their families. Some of None of them had ever been in trouble their wives had become so financially diswith the law before. None had ever been tressed during the year-long ordeal that in Texas. The nature of the gun-smuggling they were forced to move in with relatives plot under investigation was never clearly or accept money from friends in the Irishestablished nor was their relationship to American community as the only feasible it. The men barely had time to find them- alternative to welfare. selves attorneys, let alone prepare their In March, 1973, Representative Bella families and their employers for their Abzug spor sored a hearing into the Justice absences.
Department's choice of venue, at which One of them, James McKeon (a transit Senator Edward Kennedy pointed out that worker), had been suffering from a heart a grand jury in New York City is now incondition for years. His lawyers asked vestigating gun smuggling. while the the Government to recognize his frail panel in Fort Worth seems to be moribund. health and void the subpoena. On the sec- A. Williarn Olson, then head of the Justice ond day he was there, while waiting to Department's Internal Security Division, testify, he collapsed and was rushed to conceded that New York was an approa nearby hospital for treatment. He was priate place for the investigation. But the then allowed to return to New York with- five prisoners have not been transferred or out facing the jury, but five of the sub- released. They are now being held at a poenees who remained behind chose to Federal correctional facility in Seagoville, defy the legal procedure.
near Dalta which was used to detain resiThey were jailed for four months. dent aliens during World War II.-P. C.
In 1968, Congress passed what promised to be a very important piece of legislation. it outlawed the "key-man" system of selecting panelists and stipulated that jurors must henceforth be drawn from the voter rolls. But while this has made for a broader representation of citizens on the panels, it has only begun to help the institution regain its independence.
It is quite difficult for most jurors to learn the full scope of their obligations. The prob lem begins with the judge's instructions to them, "which usually consist of a few very general sentences," according to one judge. "You know, "Welcome to the club,' something like that." Jack Silar, a schoolteacher who con siders his service on the Har. risburg grand jury one of the most instructive experiences of his life, recalls that the Federal judge who instructed his panel spent only 5 or 10
N 1933, Britain
-7the subject of major public gateway to jail, should be hearings by state and Federal abolished completely. Reit judiciary committees. Mean- contends. while, he and other jurists Witnesses and their lawyers have some suggestions for re- feel it's essential to have time forms.
to prepare themselves. Most Many people who have had feel that at least a week dealings with grand juries should elapse between the agree that there should be time a subpoena is served and some sort of adversary pro- their appearance before the ceeding before an indictment jury. They also contend that is handed down. Lawyers like if a number of witnesses live James Reif of New York's in one locale, they should be Center for Constitutional allowed to appear before a Rights, Senator Kennedy and grand jury there instead of Judge Brownstein believe being whisked to an unfamilthat
witnesses should be iar place, as the Fort Worth allowed to take their own Five (see box, Page 40) were. attorneys Into the jury room, They think it's imperative to though some jurists insist tell witnesses why they've that there should be some lim- been subpoenaed. its to prevent the proceeding
juries, choosing, instead, to weigh the validity of each indictment in open court. Since then, there has been considerable sentiment that the United States should follow suit. Indeed, some states, most of them in the West, never adopted the panels as part of their system of criminal justice. (Decisions to proceed in criminal cases are made on the basis of preliminary hearings before a judge.) In 1965, New Jersey Judge Melvin P. Antell kindled considerable controversy when he wrote an article in The American Bar Association Journal calling the juries a "benighted supergovernment," archaic at best, tools for the prosecution at worst. Nevertheless, many jurists have hesitated to press for the abolition of the panels since that could be accomplished only by an amendment to the Bill of Rights. And some civil libertarians fear that the alternative to the juries which at least enable some citizens to be present when witnesses are put under oath -is the expanded power of individual prosecutors to compel testimony in totally private proceedings.
New York Supreme Court Judge Irwin. Brownstein believes that the issue of grand juries is so crucial, and so unexamined, that it should be
poenas be subjected to the same scrupulous tests as court-ordered wiretaps and search warrants.
Finally, it's clear that the courts and the public can do a great deal more to restore the grand jury's independence For example, when a jury is empaneled, at least half a day could be devoted to orienting it to its task. The talents of legal historians and scholars could supplement the instrul tions of sitting judges. Films and manuals could describe the role the juries have played in the past, emphasizing their independent nature and their traditional responsibility to protect citizens, not aid prosecutors.
There have been indications, during the past year, that some grand jurors are willing to do just that. For example, Gerald Hawes, who sat on the Marin County panel that eventually issued an indictment in the George Jack son case, has spent a great deal of time criticizing the system he saw at first-hand.
He says that he'd been dissatisfied with the jury's pli. ancy even before the deliberations in the Jackson case. But that episode was a turning point for him. He claims that the prosecuting attorney, Bruce Bales, didn't want independent, skeptical questions from the jurors. So the panel hurried through the six overt acts of the complex indict. ment. As a result, says Hawes, it indicted some inmates at San Quentin's adjustment center even though they were linked to the alleged conspiracy by the testimony of a single peripheral witness. When that happened, Hawes resigned from the panel and two other jurors concurred in his protest. Since then, they have joined with several other ex-jurors to describe the institution's inner workings at law schools and Rotary Clubs throughout the Bay Area. They hope their experience will help restore the juries to their earlier role as a shield for the defense.