Grand Jury: Power Shift?
Lawmaker's vow to give defendants clout is likely to draw heat

Sam Skolnik
Legal Times
April 12, 1999

Rep. William Delahunt 

Criminal defense lawyers have long maintained that prosecutors have too much power in the grand jury room. In recent years, much of the public and several members of Congress have come to share that opinion.

Justice Department statistics recently obtained by Legal Times, which reveal that 99.9 percent of the defendants called before federal grand juries are indicted, buttress the belief -- and concern -- that prosecutors today almost always get what they want from a system originally set up to protect citizens from governmental overreaching.

"For the first time, the people are beginning to understand the power that prosecutors have," says Rep. William Delahunt (D-Mass.), a member of the House Judiciary Committee who is sponsoring three pieces of legislation tailored to tip the balance of power away from prosecutors and rein in abuses of authority.

Delahunt, a district attorney in the Boston suburbs for 21 years, plans to introduce a bill as early as June mandating comprehensive changes in the way federal grand juries operate. He says the legislation would allow witnesses' lawyers into the grand jury room, mandate that prosecutors turn over significant exculpatory evidence to the grand jury, and prohibit prosecutors from introducing evidence to a grand jury that would be deemed illegal at a trial.

The measure, which is still being drafted, is already drawing resistance from the Department of Justice and will likely spark a heated debate in Congress later this year.

Justice Department officials say the proposal is misguided, and point to a new study by the Judicial Conference of the United States endorsing current rules barring witnesses' lawyers from the grand jury room. But some proponents believe the timing is right for change -- in large part because of heightened public awareness of grand juries in the wake of alleged abuses by Independent Counsel Kenneth Starr.

"This is something that cuts across party lines," says Delahunt. "This is about government power. We have the ability to charge, to prosecute, and to deprive you of your liberty."

Supporters say Delahunt's legislation would instill a measure of fairness and boost public confidence in the system. 

The grand jury statistics, which were released in response to a Freedom of Information Act request, confirm that indictments are handed up in the overwhelming majority of federal grand jury cases that reach conclusion.

From fiscal years 1994 through 1998, federal prosecutors secured 122,879 indictments, according to DOJ records. During the same period, prosecutors failed to get indictments in only 83 cases. Grand juries hand up "no true bills" when the majority of a 23-member grand jury finds that the government failed to show probable cause to charge a crime.

"The grand jury, as we now know it, is a foolish anachronism," says Arnold Burns, who was deputy attorney general in the Reagan administration and currently serves on a National Association of Criminal Defense Lawyers task force to change the grand jury system. "It is 100 percent in the control of the prosecutor."

Justice Department officials respond that grand juries in fact function as intended. Delahunt's proposed changes would hinder the "free flow of information" the grand jury hears from witnesses, they say, and would prolong the process.

"Proponents for a dramatic change need to make a better case that the system is broken," says James Robinson, assistant attorney general in charge of the Criminal Division. "I think you'll add a cost to the system that isn't warranted."

The issue of prosecutorial zeal has gained considerable public attention, in large part because of Starr and other special prosecutors who have been accused of abusing the grand jury process. And Congress in recent years has shown itself willing to put limits on the government. The Hyde Amendment, sponsored in 1997 by House Judiciary Chairman Henry Hyde (R-Ill.), gives federal defendants who are maliciously wronged the right to sue for legal fees, while the Citizens' Protection Act passed last year prohibits federal prosecutors from approaching witnesses or defendants without the permission of their attorneys.

Besides his grand jury reform bill, Delahunt will be pushing a bill to strengthen the punishment for federal prosecutors who leak confidential grand jury material. A third piece of legislation, to be co-sponsored by Delahunt and Rep. John Murtha (D-Penn.), would open up the Justice Department's lawyer misconduct office to increased public scrutiny. Though the measure isn't directly grand jury-related, it also strikes at the theme of prosecutorial accountability.

The grand jury reform measure, potentially affecting thousands of federal prosecutors, witnesses, and defendants annually, likely will be the centerpiece of the three bills.

Justice Department concerns aside, most of the two dozen states that use grand juries have implemented different types of reforms over the last two decades.

In 1997, for example, former GOP Gov. Pete Wilson of California signed a bill requiring prosecutors to inform grand juries of evidence that could be seen as exculpatory. Several other states allow a witness's lawyer to be present in the grand jury room to advise the witness how to respond to questions.

"The federal model is the most restrictive, the most prosecutor-friendly," says Susan Brenner, an associate dean at the University of Dayton School of Law and author of Federal Grand Jury Practice, a 1996 West Publishing treatise.

Brenner says that the way the system is set up, the prosecutor is almost totally favored -- and that jurors, whose job is, among other things, to ask questions of their own to determine whether a case should go forward, are often far too lifeless.

"The people are passive," says Brenner, "so it becomes a show for the prosecutor, where the prosecutor can do almost anything he wants."

But according to the DOJ's Robinson, the reason grand juries so often comply with prosecutors is that prosecutors are selective about who they bring before a grand jury. "It doesn't surprise me," he says. "It would concern me if there were a high number of no true bills. If anything, I think the statistics show that prosecutors are being prudent in who they are selecting to go before a grand jury."

Robinson adds that criminal defendants have ample protections at the trial stage; the purpose of the grand jury is to give citizens the full range of evidence to decide if there is probable cause for a charge to be made -- a different standard than weighing guilt or innocence.

The proposed reforms, Robinson says, would make the system overly adversarial by inviting lawyers to disrupt the flow of grand jury proceedings. What's more, he adds, Delahunt's proposals could add "a whole new layer of litigation" between indictment and trial, as lawyers could file motions claiming, for example, that exculpatory material was withheld by prosecutors.

The Justice Department has an ally in the Judicial Conference on one of the proposed changes -- having lawyers accompany witnesses into the grand jury room.

The Judicial Conference's report, prepared in accordance with legislation sponsored by Sens. Dale Bumpers (D-Ark.) and Orrin Hatch (R-Utah), concludes that lawyers' presence in the jury room could result in a loss of spontaneous testimony, transform the grand jury into an adversarial proceeding, and undermine the secrecy of the process.

Defense lawyers and other critics of the current federal grand jury system argue that the system was initially devised both as a "sword" to allow the government to charge serious crimes, and as a "shield" to protect defendants from having to face trial when the government has a demonstrably weak or politically motivated case. The shield has become tarnished and weakened, they say.

The Fifth Amendment states that "No person shall be held to answer for a capital, or otherwise infamous crime, . . . unless on a presentment or indictment of a grand jury."

Over the last 25 years, the Supreme Court has strengthened the prosecutor's grip on the federal grand jury. It has allowed the use of unconstitutionally obtained evidence, and in a 1992 ruling deemed it acceptable for prosecutors to withhold exculpatory evidence from the grand jury. In that case, United States v. Williams, Justice Antonin Scalia wrote for the 5-4 majority that it is "sufficient for the grand jury to hear only the prosecutor's side."

Advocates of grand jury reform say that the public often forgets that indictments alone, regardless of the eventual outcome of a case, can have a devastating effect on a defendant. "Indictments themselves can tremendously harm a person's reputation," says Frederick Hafetz, former chief of the criminal division of the Manhattan-based U.S. attorney's office and currently a partner in New York's Goldman & Hafetz. "It affects your professional standing, it affects your family, and it affects you personally. It's a pretty heavy cross to bear."

Robinson notes, however, that a significant portion of those who are indicted -- 90 percent -- plead guilty, and that of the remaining defendants who go to trial, another 80 percent to 85 percent are found guilty by a jury or judge.

Even if true, that means there were approximately 2,100 defendants in the last five fiscal years who were indicted -- and eventually found not guilty.

While Delahunt's grand jury proposal is certain to fuel a debate in Congress, it is unclear whether the measure will gain the necessary bipartisan support needed for passage. Even if it makes it out of the House, the Senate has historically been much more reluctant to enact these types of measures.

A Senate proposal put forth last year by Bumpers, the Arkansas Democrat, to allow grand jury witnesses to bring lawyers with them garnered only 41 votes; Bumpers and Hatch were only able to win approval for the measure that asked the Judicial Conference to study the issue.

In the House, which took the lead on passing the two new limits on prosecutors over the last two years, Delahunt's chances appear better. A staffer for Rep. Henry Hyde says the congressman will have to wait to see a final Delahunt proposal before determining whether to support it. But a clue about Hyde's leanings can be taken from an October 1997 "Dear Colleague" letter he wrote in support of his amendment.

In the letter, Hyde scoffs at a Justice Department suggestion that abusive prosecutors are sufficiently reined in by the need to pass through a grand jury before bringing an indictment. He referred to a famous quote from former federal Judge William Campbell, who said that a prosecutor, "if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury."

For his part, Delahunt -- a sophomore member of Congress who made a name for himself as a member of the Judiciary Committee last year during the impeachment proceedings of President Clinton -- says he is not trying to pick a fight with the Justice Department over federal grand jury reform.

"It's a question of fairness," says Delahunt, who adds that he has great confidence in Attorney General Janet Reno and her top deputy, Eric Holder Jr. "This should not be viewed as an attack on them."

But Delahunt knows his proposal is sure to get their attention. 

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