May 18, 2000
By Amy Worden
WASHINGTON (APBnews.com) -- Calling the federal grand jury system unfair and abusive, a panel of legal experts today asked Congress to institute reforms to remove it from the "unrestrained power of prosecutors."
"The federal grand jury system is a lawless institution," said Gerald Lefcourt, co-chairman of the National Association of Criminal Defense Lawyers Commission on Grand Jury Reform.
The grand jury is the only process in the criminal justice system where a lawyer is excluded from accompanying his client in a courtroom, he said.
Some prosecutors argue that allowing a witness to have a lawyer present during questioning would be disruptive. But Lefcourt said the several states that have passed laws allowing lawyers in grand jury rooms have had no complaints from prosecutors.
"What happens now is disruptive," he said. "The witness has to shuttle back and forth [from the courtroom to his lawyer outside] and try to remember what he was just asked."
Lack of checks and balances
The commission said that by not allowing witnesses to have lawyers present, there is no system of checks and balances, and the grand jury becomes "the tool" of the prosecutor.
"Because the grand jury process is secret, only prosecutors and grand jurors know what was said; it's never made public," said Frederick Hafetz, a commission member and former chief of the criminal division of the U.S. attorney's office for the Southern District of New York.
U.S. Department of Justice officials could not be reached for comment, but a member of the National Association of District Attorneys said having a witness counsel in the grand jury room would create a "two-tier trial system," turning the grand jury proceeding into a trial.
"In a courtroom you have a judge as a referee. Here you have a lay grand jury, and the defense wants to make it into a mini-trial. How do you discern the fluff from the substance?" said James Polley, director of government affairs for the National Association of District Attorneys.
He also criticized the proposal to force prosecutors to disclose any evidence "which exonerates the target" of the investigation, saying that determining what evidence is exonerating is "in the eye of the beholder."
The 24-member commission, made up of prosecutors, former prosecutors, defense attorneys and academics, spent two years looking at the issue before recommending changes that it says would guard individuals and businesses against unwarranted prosecutions.
'Ruins lives of innocent people'
In its report, the commission charged that the grand jury has undergone a profound shift in the past 200 hundred years, from an institution established to protect individuals to one that investigates, often wrongly, and in the process ruins the lives of innocent people.
Among the reforms included in the "Federal Grand Jury Bill of Rights" are:
- Any grand jury witness not receiving immunity has the right to be accompanied by counsel.
- A prosecutor must disclose to the grand jury any evidence that exonerates the target or subject of the offense.
- A prosecutor shall not present evidence to a grand jury known to be constitutionally inadmissible at trial because of a court ruling on the matter.
- A target or subject of a grand jury investigation shall have the right to testify before a grand jury.
- Grand jury witnesses shall have the right to receive a transcript of their testimony.
Rep. William Delahunt, D-Mass., appeared at the commission's news conference today to say he would sponsor legislation that would include the majority of the proposed reforms.
Delahunt, a former prosecutor, described the grand jury experience as "more than intimidation; it's terror."
He said there is "no more awesome power than that of the state to deprive an individual of their liberty."
The commission said changes in federal sentencing guidelines over the past 12 years make it even more important that the accused are treated fairly. Now that sentences are mandated, there are 50 percent fewer cases going to trial in the federal system, Hafetz said.
"The fate of most people accused of crimes is decided in the grand jury," he said, "because they plea bargain on the basis of the indictment."
William Moffitt, president of the National Association of Criminal Defense Lawyers, said the grand jury system was set up in 1791 to be "the sword and shield" and it was time to "restore the shield side that protects citizens."