prosecutors unprecedented leeway, since it means, for the first time in legal history, that an immunized witness may eventually be prosecuted. Giancana, if he had been granted "use immunity." still couldn't have been indicted on the basis of his own testimony. Nor could the information he supplied have been used in interrogations of other witnesses to obtain information that would, in turn, be used in questions that might trap him. But if the Government had obtained incriminating information from an independent source-from witness whose name he hadn't mentioned or a question his testimony hadn't suggestedthen he could have been in-cluded in an indictment.

a

Aside

In its Congressional testimony supporting the expanded powers of the special Federal grand juries, the Justice Department emphasized the role they would play in fighting organized crime. from the Giancana case, there was ample precedent for that point of view. At a conference on grand juries sponsored by the Committee for Public Justice in the spring of 1972, Edward Shaw, who as part of the US. Attorney's office has handled organized crime cases in the Southern District of New York since 1963, said: "In case after case, it is only after subpoenaing witnesses before the grand jury and compelling the testimony of fringe participants that the principal offenders can be brought to trial." So the grand juries have become a boon to modern mob-busters. But, unexpectedly, they also provided a means of strengthening the already symbiotic relationship between the Federal prosecutors and F.B.I. agents who were assigned to keep tabs on left-wingers.

Often the agents couldn't get the information the prosecutors wanted. They had no legal means of compelling people they visited to talk

with them, let alone give detaled answers to their ques tions. Thus they had to rely on techniques of infiltration and covert investigation. Those tactics had worked when they were applied to the highly bureaucratized Communist party of the nineteenfifties, which was relatively easy to infiltrate. But they were inapplicable to the more amorphous, free-floating movement of the nineteensixties and seventies (whose customs, like the beavy use of dope, were often antithetical to the habits

and values of people who worked for the F.B.I.). The grand juries, then, were a perfect supplement to the agents' work: They furnished the prosecution power to subpoena witnesses and jail those who refused to talk. They could succeed in precisely the areas where the F.B.L. was failing. They provided the perfect tool for court-ordered inquisitions.

Two defense lawyers, Frank Donner and Eugene Cerruti, contend in a recent Nation article that the Justice Department is trying to establish a "grand jury network" whose point is not so much to solve specific crimes as to compile dossiers on as many dissenters and activists 45 possible. Donner and Cerruti assert that 2 department computer contains all domestic political intelligence. And they say that the computer, which has unlimited filing and cross-filing potential, sometimes determines what witnesses are called and what questions are asked.

Officials of the Justice Department deny the DonnerCerruti charge about computers and dossiers, but they firmly endorse the idea that the juries should be used to extract information the F.B.I. can't obtain. In a recent interview, A. William Olson, then head of the department's Internal Security Division,* saw nothing wrong with the use of the grand jury as a tool to develop broad informa

tion for the Government. I asked him how he felt about agents threatening people who would not divulge information voluntarily with grand-jury subpoenas. (Such a situation is not a mere possibility. It happened to the well-known New York lawyer Arthur Kinoy when he refused to divulge his daughter's

whereabouts. Burton Caine, a Philadelphia lawyer, told The New York Times the bureau had threatened to bring a client of his before the Harrisburg grand jury "and prosecute him for a major crime" if he didn't tell all he knew about the theft of documents from the F.B.L's branch office in Media, Pa.) I also asked Olson about the propriety. during grand-jury proceedings, of Government prosecutors consulting F.B.I. agents about the questions that should be asked of the witnesses.

In Olson's view, such behavior is perfectly proper. He acknowledged that traditional intelligence techniques are often ineffective when used to probe the affairs of today's activists. "These people," he said, "have life-styles that are very hard to infiltrate. And they're very distrustful of outsiders" So, it's often necessary to convene an investigative grand jury. And once such proceedings are under way, Olson said, he is "sure that the prosecutor would work closely with the F.B.I. agent during the time the grand jury was convened so that he'd be able to ask the witness the proper questions and to evaluate his answers. In conducting a grand jury, the Attorney General and the F.B.I. are part of a team solv. ing a crime. They're organs of the Justice Department."

Olson's description of the way witnesses are selected re

inforces the contention that the grand jury is an extension of the FBI. "In many cases you go into an investigative grand jury with only a suspicion that criminal laws have been violated. And sometimes as the grand jury progresses you get bits and pieces. And sometimes they fit in not with what you started out to investigate, but with other crimes, not necessarily in the same jurisdiction."

Witnesses, then, are "bits and pieces," people branchoffice agents have spotted as potential leads. A witness may be a friend of a suspect or someone whose name has bubbled into the consciousness of an informer like Boyd Douglas, whose testimony was the heart of the Government's case in the trial of the Harrisburg Seven, or someone whose name was mentioned in a wiretapped conversation. Someone, in other words, who is only peripheral to the radi. cal movement, like Sue Sussman, who volunteered to work with the Harrisburg Defense Committee shortly after Father Philip Berrigan, Sister Elizabeth McAlister and their co-defendants were indicted Two weeks after she became involved with the committee, the FBI began to suspect that a co-worker who had just become her friend had been involved in an abortive attempt to steal files from an F.B.I. office in Garden City, L. L. (The raid took place after the one in Media, Pa. The raiders evidently hoped to find a cache of documents that would describe the bureau's activi. ties in New York State.)

Sue Sussman was summoned to testify and had to spend a week sitting in Manhattan's Federal Building be fore the investigation was blocked by a technicality involving the legal definition of

the new

theft. And though she didn't have to make the difficult de cision to testify or risk con. tempt, the experience did give her bome serious thoughts: To her the price of a chance friendship with a resister turned out to be potentially very high. She has continued her friendships with members of the resistance community, but she can see how fear of the grand jury might make others wary of forming such friendships in the future.

Sometimes freak accidents can cause torrents of names to cascade through F.B.I. offices and into Justice Department files. For example, in April, 1971, 25 people were subpoenaed to

appear before

the grand jury in Harrisburg. Many witnesses, who came from as far away as Boston and Chicago, couldn't figure out what relationship they had to one another or to the case. A year later, during the trial, it became clear that the Justice Department thought they might yield "bits and pieces" because they had all been mentioned in the Berrigan-McAlister correspondence that Boyd Douglas turned over to the F.B.I. Most of their

names came up in the context of gossipy, marginal com

ments.

M

OST of the juries that investigate politically motivated crimes are directed by a cadre of about a dozen Justice

Department lawyers headed by Guy Goodwin, a controversial ex-Democrat from Wichita, Kan. Despite its size the group has performed a Herculean chore. Between 1970 and January, 1973, it had presented evidence to more than 100 grand juries in 36 states and 84 cities. It had subpoenaed between 1,000 and 2,000 witnesses (not people charged with substantive crimes, but simply those who might know a fact or two that could lead to an indictment) them to testify under oath. Hundreds have chosen to stand mute. About 30 have been cited for contempt of court. The juries have produced an estimated 410 indictments. Since many of their cases haven't come to court yet, it's still too early to tell the proportion of indictments to convictions.

and compelled

As head of the unit Goodwin has conducted most of the major grand-jury investigations into politically motivated crimes. His tough, im. perious approach has made him into a sort of latter-day Roy Cohn figure for much of the left. For several years a "wanted" poster with his name on it bas been circulating among radicals. Goodwin's somewhat prissy manner his coiffured hair, manicured nails and precise, high-registered tone of voice -makes his image as a dedicated terrorist-buster a little incongruous. Yet he pursues his quarry with a vengeance. He has memorized the biographies and backgrounds of scores of radicals. On the night the F.B.I. used informer Robert Hardy's tips to catch 28 Camden draft-board raiders in the act, Goodwin was there at 2 A.M., indictment in hand. He recognized many of the captives by their mug shots and called them by their nick

names.

The witnesses that Goodwin, or any other U.S. attorney, subpoenas are legally forbidden to have their lawyers with them in the grand-jury room. If they want to consult with

are

counsel, they must do so in the corridors of the Federal Buildings where the investigations are usually beld, and they must first ask the prosecutor's permission. The questions that they are asked puzzling because their relationship to the specific crime under investigation is often quite tenuous. (When asked about such questions, A. William Olson said, "I don't see anything wrong with fishing expeditions, as you call them. I think we would be remiss if we didn't try to solve crimes.")

often especially

For example, in October, 1970, shortly after Goodwin became head of his group, he subpoenaed five young activists from Venice, Calif., to testify before a Tucson grand jury about an alleged purchase of dynamite. The subpoenas were issued after an indictment against the man who had supposedly bought the dynamite had been issued. Goodwin justified that by saying that he was continuing

the grand-jury investigation with the intention of bringing a second, superseding indict. ment. But some of his questions 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 immediately), 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 returned 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 during 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 Weatherman, 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."

At first, all of the witnesses refused to answer those questions, 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 subpoe naed 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 joined members of organized

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 doings of criminals or the radical underground than Government 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-to-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 a 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

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 during the whole Pentagon Papers controversy.

During his hours in the jury room, Popkin said, "I was very concerned with the whole power of insinuation the prosecutor 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 something like, 'Oh, so you're afraid to answer a little question like that.' And there was nothing I could do but sit there and take it. I felt paralyzed from defending myself by the law. I felt intimidated and manipulated in that room."

If the current controversy over the Justice Department's grand-jury strategy is understandable, its focus is also somewhat limited. For those who criticize the political use of the juries speak mainly in terms of an Administration attack on dissent. If it is outrageous to subpoena, immunize and imprison journalists, 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

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 bombing of the U.S. Capitol? The current critics of the grandjury system have simply refused to face this issue. They have no consistent answer to the argument that the social benefit of powerful grand ju ries the increased potential for fighting crime-is worth the loss of some individual freedom.

The week that Peter Bridge I went to jail for contempt of court, Eugene Gold subpoenaed 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 policeman's prediction.

The day that Samuel Popkin 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

-6

But the panels always pos sessed a second, more complex function. Besides the power to ratify indictments, they were often given enormous 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

When a grand-jury proceeding is highly publicized, the reluctant witnesses are usually treated with some care. But many cases have been relatively unpublicized, and they've had a profound effect on the lives of people who lack the resources to withstand their financial and emotional cost. For example, in 1972, the Treasury Department began to investigate the shipment of illegal arms to Northern Ireland, In March, they turned the information they had developed over to the Justice Department. That month, Justice ordered witnesses from the New York area (including a male nurse, a real-estate salesman, a bus driver, a carpenter and a housepainter) to be in Fort Worth, Tex., within 48 hours of receiving their subpoenas.

None of them had ever been in trouble with the law before. None had ever been in Texas. The nature of the gun-smuggling plot under investigation was never clearly established-nor was their relationship to it. The men barely had time to find themselves attorneys, let alone prepare their families and their employers for their absences.

One of them, James McKeon (a transit worker), had been suffering from a heart condition for years. His lawyers asked the Government to recognize his frail health and void the subpoena. On the second day he was there, while waiting to testify, he collapsed and was rushed to a nearby hospital for treatment. He was then allowed to return to New York without facing the jury, but five of the subpoenees who remained behind chose to defy the legal procedure.

They were jailed for four months.

They were fread pending appeal, but only after strenuous lobbying by their lawyers, Paul O'Dwyer and Frank Durkan, and after Congressmen Mario Biaggi, Lester Wolff and Peter Peyser intervened in their behalf.

During their first six weeks in jail they weren't allowed to telephone their families. Two of them lost their jobs. The bus driver's wife had a miscarriage. One of the male nurse's sons, a 7-year-old, suffered severe anxiety because he thought his father was dead.

In Jan., 1973, a U.S. Court of Appeals ruled that the men were required to testify, and after six months of nervous freedom, they were jailed again. This time they were forbidden to contact their families. Some of their wives had become so financially distressed during the year-long ordeal that they were forced to move in with relatives or accept money from friends in the IrishAmerican community as the only feasible alternative to welfare.

In March, 1973, Representative Bella Abzug sponsored a hearing into the Justice Department's choice of venue, at which Senator Edward Kennedy pointed out that a grand jury in New York City is now investigating gun smuggling, while the panel in Fort Worth seems to be moribund. A. William Olson, then head of the Justice Department's Internal Security Division, conceded that New York was an appropriate place for the investigation. But the five prisoners have not been transferred or released. They are now being held at a Federal correctional facility in Seagoville, near Dalia, which, was used to detain resi dent aliens during World War II.-P. C.

a free hand in investigating corruption. (One Minneapolis jury foreman who did just that, Hovey Clarke, was a hero of Lincoln Steffens's muckraking 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 juries 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 a 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.

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 problem 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 considers his service on the Harrisburg 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

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.

N 1933, Britain
abolished its grand

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 jurieswhich 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

gateway to jail, should be abolished completely, Reif contends.

Witnesses and their lawyers feel it's essential to have time to prepare themselves. Most feel that at least a week should elapse between the time a subpoena is served and their appearance before the jury. They also contend that if a number of witnesses live in one locale, they should be allowed to appear before a grand jury there instead of being whisked to an unfamiliar place, as the Fort Worth Five (see box, Page 40) were. They think it's imperative to tell witnesses why they've been subpoenaed.

In theory, grand juries are supposed to be part of the judiciary, which means that prosecutors have the unchecked right to subpoena anyone they want. However, since in most cases the juries serve as tools for the prosecution, Stephen Gillers, former director of the Committee for Public Justice, feels that judges should begin to play a more active, watchdog role. In some cases, he says, it may be necessary for them to require that grand-jury sub

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 instructions 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 prose

cutors.

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 Jackson 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 indictment. 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. ■