Study: Change Grand Jury Rules

Monday, July 3rd 2000, 12:00 am
By: News On 6

WASHINGTON (AP) — A businessman is subpoenaed to appear before a grand jury as a witness. On the stand, he admits he cheated on his taxes. He later is charged with tax evasion.

This cannot happen in many state courts, where witnesses may have lawyers with them to advise against self-incrimination.

It can and does happen in federal courts, however, where ``the grand jury process itself is largely devoid of legal rules,'' said a report by the National Association of Criminal Defense Attorneys.

``The balance has shifted so dramatically in favor of the prosecution that it has been noted, time and again, that `a good prosecutor could get a grand jury to indict a ham sandwich,''' said the report written by 20 lawyers, including three former U.S. attorneys.

The situation is getting worse, the authors said, citing a proliferation in plea bargains and several Supreme Court decisions as evidence the scales are tipped toward prosecutors.

The study suggests 10 changes in the federal grand jury system. Among the most notable: Let witnesses appear with lawyers and give them transcripts of their testimony. Under current rules, only prosecutors may see the transcripts.

The nonpartisan Council for Court Excellence, which studies the interaction between citizens and the justice system, has made similar recommendations, its executive director, Samuel Harahan, said.

Also, Rep. William Delahunt, D-Mass., a former district attorney, plans to introduce a bill this summer very similar to the defense attorneys' suggestions.

Similar efforts have failed. Notably, the American Bar Association pushed changes 20 years ago such as those recommended in the report; Congress killed the idea.

``Traditions die hard in a lot of these areas,'' Harahan said.

The Justice Department would not comment on the defense attorneys' report but has objected to previous efforts. Federal officials say the current system ensures witnesses testify fully and truthfully.

Grand juries have two major roles. They can investigate, subpoenaing witnesses who might not otherwise come forward, or they hand up indictments, official documents that charge crimes. The decision to indict is based on a prosecutor's presentation.

Grand jury proceedings are secret, though some state courts make transcripts available after indictment.

Those who favor changing the system say allowing witnesses to bring lawyers into the grand jury room is then most important change that should be made. It also is the area in which the Justice Department seems least likely to budge.

``It seems ironic that there are so many places where it's absolutely a right to have counsel present, including congressional hearings, but in a grand jury, where your liberty is at special jeopardy, your adviser has to sit outside,'' Harahan said.

Justice officials have in the past said the type of cases they prosecute makes it necessary to preclude lawyers. For example, a drug cartel or an organized crime family may hire one lawyer to represent every member. Prosecutors believe that if the lawyer is outside the courtroom, a witness can be open without fear of retaliation.

Many of the changes Delahunt and the report suggest are practices the U.S. attorneys' own manual endorses. For example, federal prosecutors are instructed to let grand juries know about evidence suggesting the target of the investigation may be innocent, even though no law bars them from withholding such evidence.

Federal prosecutors also are told not to present grand juries illegally obtained evidence, although no law stops them.

The need for reform is more pressing because of a series of laws and court decisions, said Fred Hafetz, a former federal prosecutor in New York who helped write the report.

Close to twice as many cases end in plea bargains than did before 1987, when Congress set mandatory sentences for federal crimes, Hafetz said. ``Defendants are afraid to take a chance at trial because the judge has lost the discretion to give probation or minimal sentences,'' he said.

That, according to Hafetz, means an indictment produced in a setting that favors prosecutors often is all that's needed for a conviction.

A series of Supreme Court decisions also has aided prosecutors, said defense attorney Gerald Lefcourt, another of the report's authors. The high court has said federal district judges lack the authority to review or throw out indictments, which most state judges can do.

The result is prosecutors' grand jury work is virtually unchecked, Lefcourt said.