Dear Editor
Dear Editor The Grand Jury I read with great interest the November 10 special issue of The New Leader dealing with "The Grand Jury: An Institution on Trial." I would like to commend Judge Marvin...
...Unregulated, extra-legal compulsory process is a hallmark of a police state...
...The Organized Crime Control Act of 1970 increased the statutory situations in which immunity could be obtained, and through a slight change of wording sought to remove discretion from judges as to whether immunity orders should be signed...
...Though this is clearly not the case with Judge Frankel, I have seen judges time and time again pretend that the grand jury is functioning independently of the prosecutor and not take steps to insure that it does...
...This recommendation, as well as a number of the other recommendations urged by the authors, is presently under active consideration by a Committee of the Criminal Justice Section of the American Bar Association...
...Why not require grand jury stenographers to record every last word that is uttered by anyone before the grand jury, completely eliminating these off-the-record exhortations, remarks and characterizations of witnesses and of testimony that can influence grand jurors...
...Their discussion is complete, well documented and balanced...
...I favor an additional requirement that the grand jury first try to work with the U.S...
...Many lawyers have communicated directly to the U.S...
...A favorable grand jury vote also would be required...
...The government attorney, instead, recessed her jury and never called it back...
...In many of the Internal Security Division cases the grand jury became a tool for FBI intelligence gathering or a vehicle for tracking down fugitives...
...The U.S...
...In scores of cases citizens have been told by FBI agents that if they do not answer FBI questions now, they will be compelled to answer them later before the grand jury...
...While serving as prosecutor I also pre-filed the bill affording counsel to grand jury witnesses enacted by New York's 1975 legislature, which was vetoed in a gubernatorial message that the kindly Frankel-Naftalis team termed a "not . inspiring document...
...I was especially impressed by the interesting historical narrative, the detailing of the different kinds of grand juries, the description of how a grand jury functions, and the presentation of the views of leading judicial minds on the role of grand juries with reference to First Amendment freedoms...
...I would like to commend Judge Marvin E. Frankel and Gary P. Naftalis on their very perceptive and constructive assessments of the Grand Jury system and their recommendations for reform...
...The case was then brought before a presumably more docile one...
...2986 provides procedural safeguards that would be available in all investigations...
...Perhaps the most effective legislation would be a bill to create a cause of action in favor of the victim of the leak who, presumably, would have the greatest motivation for seeking redress...
...Attorney and FBI, and the use of immunity as a political weapon...
...But if the threat of indictment cannot force cooperation, then why would the threat of contempt...
...Any efforts to educate jurors about their powers and responsibilities will be a futile exercise if prosecutors retain their power to administer jury decisions...
...New York City E. Donald Shapiro, Dean, New York Law School In these days of continually burgeoning crime, every TV newscaster, aspiring politician and high school student seems to have become an expert on criminal justice...
...In 1971 she sought to recall an FBI agent who had testified...
...To express personal minor differences with a few details of the Frankel-Naf-talis study is not to suggest aught but boundless admiration for the comprehensive contribution it has made...
...The layman, the police officer and even the lawyer can become better informed through the information and views offered by Frankel and Naftalis...
...Yet the subpoena power of the grand jury has been expropriated by both...
...In the public mind an indictment implies some degree of guilt...
...In this respect English laws better protect defendants than ours...
...The practice has continued ever since...
...There are lessons from Watergate...
...But the two authors have done a superb job...
...New York City Lorraine Colville Associate Professor, John Jay College of Criminal Justice...
...The grand jury is a subject that is known, and yet not known...
...The great Learned Hand more than half a century ago, noted that "Indictments are calamities to honest men...
...I differ...
...Attorney before seeking court-appointed counsel...
...New York City Robert G. Morvillo The New Leader, the Tamiment Institute, Marvin E. Frankel and Gary P. Naftalis are to be congratulated on "The Grand Jury...
...The case of Los Angeles juror Harriet Mitchell is a good illustration...
...For the time being, I'll see what my students say and perhaps we can at least work toward certain needed reforms in the system...
...John Conyers Member of Congress In codifying the sundry aspects of grand jury proceedings and their accompanying problems and proposed solutions, Marvin E. Frankel and Gary P. Naftalis have performed a valuable service to the Bar and the community at large...
...I recited to the panels the history of those glorious 1681 cases—those of Shaftesbury and of Colledge—and importuned that, particularly in long investigations, the grand jurors make their own decisions and not simply do that which they divined the assistant prosecutor may have desired...
...The government's power to select virtually any district in the country to convene a grand jury, or to convene several grand juries across the country on the same matter, is dealt with in my legislation...
...Given the tradition of the grand jury as an agency to ferret out official misconduct, on the one hand, and the reality of almost total prosecutorial control on the other, the status quo encourages the dubious expectation that the government will police itself...
...There is no more flagrant disregard for the institutional integrity or purpose of the grand jury than the prosecutor's ability to ignore a no-bill or switch grand juries when jurors begin asking questions...
...The most far-reaching proposal would return the Fifth Amendment intact to the American people by allowing a witness to be immunized only with his or her consent...
...Two other minor, extremely minor, criticisms: (1) Suggesting that grand jury reports were proper but only in extremis, the authors might have noted New York State's 1964 statute, which legislatively provides controls, including methods of review, prior to issuance, to assure that particular grand jury reports are appropriate...
...Such a bill could authorize a person to collect damages from the source of the leak in a minimum statutory amount of, say, $1000, plus legal costs, plus any provable losses above $1000 resulting from injury to the victim's reputation...
...On the matter of independent grand jury inquiry, I certainly agree with the authors that any such proposals should be studied carefully before being implemented...
...The difficulty is that when the source of a leak is the prosecutor himself, or a member of the grand jury, it is unlikely that the government would press criminal charges...
...The problem remains of how to handle indictments once returned that become public knowledge...
...Attorney on subpoenas of clients' records...
...It is respected, feared, considered vital, often silently cursed...
...In this media age, any court proceeding is fair game for journalists if the case is important enough...
...The long wait till trial, and the Chinese water torture that a trial can represent to an innocent defendant—or to a person not technically guilty?militate in the strongest fashion for meaningful judicial activity when the adequacy of an indictment, and the supporting evidence, is questioned by counsel, even conceding that pretrial inspection and dismissal motions can prove a significant added judicial burden...
...As things now stand, virtually any citizen can be forced to testify about anything or anyone...
...During the time I served as New York County's District Attorney, I addressed every new panel of grand jurors and urged upon them—occasionally to the distress of some of my then aides—the importance of their own decisional processes...
...But some teeth are needed in the provision...
...Further, it would put a stop to serious infringements of Constitutional rights...
...Their incisive and penetrating analysis should contribute much to better public understanding of the strengths and weaknesses of the present system...
...Washington, D.C...
...J. Edgar Hoover always wanted subpoena power for his agents but never officially got it...
...New York City Michael Marks Cohen Judge Frankel and Gary P. Naftalis have provided the American people with a thoughtful analysis of the problems involved in the grand jury process...
...It is argued in rebuttal that forced immunity is needed to fight against organized crime...
...It would also add time and cost to an already overburdened justice system...
...The authors, who concede that their experience has been in the Federal court?indeed in the excellent Southern District of New York—minimize the need for courts to entertain motions to inspect grand jury minutes, and to dismiss indictments, when the minutes may suggest inadequate evidence...
...2986 would return the power to issue subpoenas to the grand jury, requiring a vote on each one and a valid evi-denciary purpose for each subpoena issued...
...Hopefully, this excellent and comprehensive presentation will act as a catalyst toward reform in an area that has been too often neglected to the detriment of the entire criminal justice system...
...Probably what we need are tough new laws or stricter enforcement of existing laws to prevent unwarranted disclosure of privileged information...
...In the mid-1960s Federal prosecutors developed the technique of using immunity laws not to gain evidence, but to set up witnesses for contempt and incarceration without trial...
...I shall make it "must" reading for both my graduate and undergraduate classes in American government, urban problems, etc...
...I agree that further discussion is needed on the proposal to allow the quashing of subpoenas and dismissing of indictments if the charge to the jury is inadequate...
...In the spirit of furthering public discussion, I would also like to add some observations about certain provisions of H.R...
...The authors cited only three of the provisions that they discussed as being part of H.R...
...The proposed remedy would, therefore, be no more effective than a scheme to use penal sanctions as a means of deterring illegal seizure of evidence by police...
...In an open society there is no ready solution, but more open discussion is certainly called for, and the New Leader special issue serves as a fine example of how that discussion should be conducted...
...Some key abuses of the grand jury addressed in the bill should be pointed out, and two are especially important—the de facto subpoena power now in the hands of the U.S...
...They can not only desist from such off-the-record exhortations but can encourage grand jury independence...
...Judges must be required to insure that jurors understand their powers, and the judge's charge should be recorded...
...Even though the grand jury functions before a trial, should the press get wind of its activity it becomes a form of conviction...
...Given the erosion of citizen confidence in government, we once again need the grand jury as a vehicle for holding officials accountable for their conduct...
...They say that "the cure of testing the grand jury's evidence is likely to be worse than the disease," and later conclude: "We oppose . the further step of allowing the use of these transcripts for challenges to the indictment on the ground that the evidence before the grand jury was insufficient" [p...
...Each appears ready with an opinion as to whether plea bargaining should be terminated, marijuana should be legalized, capital punishment is to be scourged, or judges would best be elected or appointed...
...Courts would have the discretion to review immunity grants and to insure these are not capriciously or punitively used...
...A major contribution of the Frankel -Naftalis piece is its lucid and compelling exposition of the importance of that right to counsel...
...Attorney has never been granted it either...
...2986 offers a number of changes in addition to returning to transactional immunity...
...2) The authors note that prosecutors occasionally indulge in "mini-summations . not made a part of the record" to exhort the grand jurors to indict...
...The New Leader, the Tamiment Institute, Judge Marvin E. Frankel, and attorney Gary P. Naftalis have done a service for criminal justice and hence for the American community by their probing, lucid, balanced, nondogmatic, and forward-looking—as well as entertaining—presentation of "The Grand Jury...
...In the District of Columbia, similar practices prompted one judge to warn of "the sort of tactics employed by prosecutors to transform grand juries from neutral arbiters into prosecutorial rubber stamps...
...The damage that may be done by abuse of subpoena power would at least be limited if not for the shocking lack of regulation of immunity laws...
...Prosecutors should be required to avoid publicity until cases come to trial...
...New York City Joel Harnett In their excellent study Marvin E. Frankel and Gary P. Naftalis recommend penal sanctions as a means of plugging grand jury leaks...
...Should the grand jury be abolished...
...Prosecutors of good will, of course, can themselves—without legislation—go far to render the grand jury a more viable institution...
...There were no immunity statutes in Federal criminal law until the 1950s and the McCarthyite hysteria, when the Fifth Amendment itself was viewed as un-American...
...Yet giving the defendant additional rights within the grand jury would be counterproductive, leading to more, not less, of a trial atmosphere...
...I wish to convey my appreciation to them...
...Under Department of Justice personnel the Watergate grand jury was led through a very limited inquiry and to very narrow conclusions...
...New York City Richard H. Kuh Your comprehensive review of the grand jury system serves the purpose of clarification for this non-lawyer and is a genuine public service...
...This is strikingly apparent in cases involving political or organized crime figures, or corporation executives, and is a serious abuse of the fair trial concept...
...It is my view that such a situation would allow for the legitimate exchange of testimony for nonprosecution...
...My proposal, limiting such inquiry to alleged criminal activity on the part of government officials, is a narrowing of broader proposals put forward in grand jury reform legislation...
...If the grand jury is to be anything more than a weapon of prosecutorial control, then prosecutors must be blocked from forum shopping and denied the power to treat a grand jury decision as an inconvenience...
...Such calamities can be magnified into catastrophes by months, sometimes years, of existing under the shadow of indictment while awaiting trial, and by the awful experience of participating in a trial as the accused and wondering each wakeful moment whether the judge will rule the charges legally defective or the jury will acquit...
...2986, which I introduced along with 24 co-sponsors and which the authors take up...
...But the grand jury—the 800-year-old great, great, grand-daddy among all of America's criminal justice institutions—has continued shrouded in mystery...
...I don't know...
...Instances of agents carrying blank subpoenas with names being filled in on the spot have been reported...
...2986, but many of the other reform provisions that they mention favorably are included in it...
...Only with the coming of an independent special prosecutor was a more adequate investigation and prosecution launched...
...it raises questions not easily answered...
...Once a no-bill is returned or a case is considered by a jury, it is reasonable to expect a minimal showing of new evidence from the prosecutor before he can go to another set of jurors...
Vol. 58 • December 1975 • No. 25
