Creighton law review, Vol. 33, No. 4 1999-2000, 821 school of law



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CREIGHTON LAW REVIEW, Vol. 33, No. 4 1999-2000, 821

SCHOOL OF LAW


CREIGHTON UNIVERSITY
OMAHA, NEBRASKA

IF IT'S NOT A RUNAWAY, IT'S NOT A REAL GRAND JURY

ROGER ROOTS†

I. INTRODUCTION

The doings of American grand juries are notoriously misunderstood and unknown by most sectors of the public.[1] Generally, the grand jury process escapes obscurity only when indictments are made public and when, for whatever reason, grand jury "leaks" are disclosed in the news media.[2] In theory, the grand jury is supposed to act as a check on the government — a people's watchdog against arbitrary and malevolent prosecutions.[3] By and large, however, federal grand juries rarely challenge federal prosecutors.

Today, critics are nearly unanimous in describing the alleged oversight function of modern grand juries as essentially a tragic sham.[4] The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse.[5] In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one.[6]

A "runaway" grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today's "runaway" grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact "runaways," according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.[7]

Before the Federal Rules of Criminal Procedure — which made independently-acting grand juries illegal for all practical purposes — grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.[8] One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:



In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a "runaway" grand jury investigation of issues that a prosecutor does not want investigated, the powers of the grand jury enhance the powers of the prosecutor.[9]

Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department.[10] In practice, the grand jury's every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.[11]

The term "runaway grand jury" did not appear in legal literature until the mid-twentieth century.[12] The reason for this is that the term would have been inapplicable in the context of previous generations: every American grand jury known by the Constitution's Framers would be considered a runaway grand jury under modern criminal procedure. Constitutional framers knew criminal law to be driven by private prosecution and did not contemplate the omnipresence of government prosecutors.[13] Additionally, early American common law placed far more power and investigative judgment in the hands of grand juries than does the criminal procedure of the twentieth century.

Although in 1946 the drafters of the Federal Rules of Criminal Procedure looked with horror at the prospect of grand juries that "could act from their own knowledge or observation,"[14] long-standing common law precedent upholds the power of grand juries to act "independently of either the prosecuting attorney or judge."[15] At common law, a grand jury could freely "investigate merely on [the] suspicion that the law [was] being violated, or even because it want[ed] assurance that it [was] not."[16] In light of the historic independence of the grand jury, the perfidy of the Federal Rules Advisory Committee in limiting the institution through codification can only be seen as willful subversion of well-settled law.[17] A truly independent grand jury — which pursues a course different from the prosecutor — is today so rare that it is an oddity, and a virtual impossibility at the federal level since Rule 6 was codified in 1946.



The loss of the grand jury in its traditional, authentic, or runaway form, leaves the modern federal government with few natural enemies capable of delivering any sort of damaging blows against it.[18] The importance of this loss of a once powerful check on the "runaway" federal government is a focus that has remained largely untouched in the legal literature.

This article examines the historic decrease in the powers of the American grand jury during the twentieth century. It introduces the subject of the grand jury in the context of the constitutional language which invoked it, and then compares the modern application of the institution at the federal level with its common law model.[19] Tracing the historic evolution of the grand jury as an anti-government institution in the English common law until its "capture" by the government in the mid-twentieth century, this article will demonstrate how the role of the grand jury has changed considerably over time. Finally, this article will argue that the modern loss of "runaway" or independent grand juries is unconstitutional and recommend a restoration of the grand jury's historic powers.

II. THE GRAND JURY'S HISTORIC FUNCTION

The Fifth Amendment to the United States Constitution requires that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."[20] Constitutional framers considered this protection "a bulwark against oppression" due to the grand jury's historic powers to investigate the government and deny government indictments.[21] The grand jury of the eighteenth century usually consisted of twenty-three people acting in secret who were able to charge both on their own (an accusation known as a "presentment") and upon the recommendations of a prosecutor.[22] In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence at any time and to investigate public officials without governmental influence.[23] These fundamental powers allowed grand juries to serve a vital function of oversight upon the government.[24] The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.[25]

THE MODERN GRAND JURY IN COMPARISON

Today's federal grand jury hardly fits the image of a noble and independent body.[26] As a practical matter, it is little more than an audience for summary government presentations.[27] Grand juries in federal courthouses do little more than listen to "a recitation of charges by a government witness."[28] Federal prosecutors, unchecked by a grand jury in its modern misconstruction, can easily obtain whatever result they seek in the grand jury room.[29] They generally call only one witness, a federal agent who summarizes, in hearsay form, what other witnesses (if any) told her.[30] Eyewitnesses, even if available, rarely appear, and the entire presentation of the prosecutor's case may take as few as three minutes.[31]

Even the federal grand jury handbook issued to newly sworn grand jurors reflects the watered down nature of modern grand jury activities.[32] The 1979 version of the handbook assured jurors that "you alone decide how many witnesses" are to appear.[33] Five years later, the updated version of the handbook told jurors "that the United States Attorney would 'advise them on what witnesses' should be called."[34]

"Today, the grand jury is the total captive of the prosecutor," wrote one Illinois district judge, "who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury."[35] Supreme Court Justice William Douglas wrote in 1973 that it was "common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive."[36] At least one scholar has suggested that the problem of grand jury subordination may be so institutionalized that its very structure violates due process.[37] The critics are unanimous in their condemnation of the modern grand jury process as little more than an elaborate ritual used only to justify by ceremony the decisions of the government. Commentators only disagree on whether to term the grand jury the prosecutors; "indictment mill," "rubber stamp," a "tool" or "playtoy."[38]

STATISTICAL PROOF

According to David Burnham of the Transactional Records Access Clearinghouse ("TRAC"), the statistical evidence "overwhelmingly supports what practicing lawyers have known in an anecdotal way for many years: One of the basic safeguards promised by the Fifth Amendment is a fraud."[39] Describing traditional expressions by federal judges concerning the grand jury as those of "almost mystical faith" — with little basis in reality, Burnham speaks of scores of decisions in which courts have found that Justice Department lawyers lied, cheated, or took other improper actions to win their indictments and convictions, but which courts found did not serve to overpower the grand jury's alleged independence.[40] "The grand jury as an institution is worshipped for being something it is not," according to Burn-ham, "a group of citizens capable of confronting an assistant U.S. Attorney over matters of the law or sufficiency of evidence."[41] Another writer has described grand jury subpoenas and indictments as "essentially unilateral decisions by prosecutors."[42]

According to TRAC, of 785 federal grand juries in 1991, grand jurors voted against the prosecutor in only sixteen of the 25,943 matters presented to them, a rate of 99.9% agreement.[43] Even the remaining one tenth of one percent, according to Burnham, might exaggerate a grand jury's independence, due to prosecutors deliberately "throwing" a couple of prosecutions, such as the possibly disingenuous 1991 "investigation" of Virginia Senator Charles Robb on widespread allegations of illegal tape recording of a political rival.[44]

Even the Justice Department has tacitly conceded that there is almost no such thing as grand jury independence. A 1983 report by its Office of Development, Testing and Dissemination concluded that the imbalance of power between the courts and prosecutors on one hand and the grand jury on the other "makes grand jury effectiveness largely dependent on the good will and ethics of the courts and prosecutors."[45] The Justice Department report shrugged off this criticism, however, asserting that prosecutors have little incentive for promoting unsound indictments since they have the burden of preparing for trial. "Indeed," claimed the report, "the incidence of guilty pleas and verdicts following indictment may be seen as evidence of the ultimate effectiveness of the grand jury process."[46]

Despite this self-serving confidence by the government, the vast majority of disinterested observers view grand jury effectiveness as completely subject to the direction of federal prosecutors. As one scholar put it, "[t]he notion that grand juries do not eliminate weak cases is now so well accepted that it is difficult to find any recent scholarly support to the contrary."[47]

But while critics of the grand jury process are many, few point to any clearly articulable reasons to explain why the grand juries of the past were so much better at resisting the will of the prosecutor than those of today.[48] Some authorities place the blame on federal prosecutors and argue that Congress should expressly prohibit them from misleading grand juries by withholding exculpatory information or from using illegally seized information to gain grand jury indictments.[49] Others point to the modern grand jury's lack of investigative tools and call upon Congress to provide grand juries with their own investigative staff and resources.[50] Other sources, such as the American Bar Association, have pointed to modern grand jury instructions as a major source of grand jury subordination, and argue that instructions should be altered to emphasize to grand jurors their independence and their co-equal status in relation to the government.[51 ]Other authorities have placed the blame squarely upon the Federal Rules of Criminal Procedure, which provide no clear avenue for the exercise of traditional grand jury powers.

III. ORIGINS

The grand jury is first known to have existed in 1166, when the Norman kings of England required answers from local representatives concerning royal property rights.[52] In its early centuries, the grand jury evolved into a body of twelve men who presented indictments at the behest of private individuals or the prosecutor of the King.[53] The Magna Carta provided that individuals had the right to go before a grand jury to be charged of their crimes.[54] As trial by a jury of twelve replaced trial by ordeal, the grand jury became a body of twelve to twenty-three men, which is closer to the way it is set up today, acting as ombudsmen between the King's officials and royal subjects.[55]

SECRECY ADOPTED IN 1681

By 1681, the English grand jury adopted the rule of secrecy which allowed it to function out of the sight of the King's prosecutors or other inter meddlers. It was secrecy that provided the grand jury with its greatest power as an independent populist body, equipped with an oversight power on the government. Thus was born the grand jury in its primal, plenary sense. It was a group of men who stood as a check on government, often in direct opposition to the desires of those in power. Eulogized by Coke and Blackstone, the grand jury crossed the Atlantic as one of the fundamental foundations of common law in the American colonies.[56]

The development of grand juries in America was similar to that of England, with a few exceptions. The English colonies in America were crucibles for popular anti-monarchical ideology. The grand jury was the initiator of prosecutions, acting "in several of the colonies as spokesmen for the people . . . and [as] vehicles for complaints against officialdom."[57] Indeed, in America, the grand jury originally began as a defense against the monarchy, and was arguably even more independent than the English grand jury of the 1600s.[58] American grand juries initiated prosecutions against corrupt agents of the government, often in response to complaints from individuals.[59]

Crossing the Atlantic Ocean with the first English colonists, the notion of the grand jury as an indispensable arm of law enforcement became entrenched. Grand juries in their "runaway" sense were a bedrock foundation of the English common law that was inherited by the American justice system.[60] Grand jurors in New Plymouth colony were charged "to serve the King by inquiring into the abuses and breaches of such wholesome laws and ordinances as tend to the preservation of the peace and good of the subject."[61] In early Connecticut, grand jurors were specifically mandated to report any breaches of the laws they knew of in their jurisdiction.[62] In Massachusetts, grand jurors had to appear at least once yearly before their county courts to disclose "all misdemeanors they shall know or hear to be committed by any person."[63] These grand jurors had a duty to report offenses in their communities that came to their attention, to personally investigate suspected wrongdoing, and to question anyone whose behavior seemed suspicious.[64]

In the early American experience, the grand jury became more a part of local government than it had apparently ever been in England. A grand jury in Virginia in 1662 was part of the country system, which meant that they would meet two times a year "to levy taxes and oversee spending, supervise public works, appoint local officials, and consider criminal accusations."[65] Connecticut grand juries were levying taxes and conducting local government work by the middle of the 1700s.[66] A similar active role in local government was assumed by grand juries in the Carolinas, Georgia, Maryland, New Jersey, and Pennsylvania, all of which had sufficient independence to publicly announce dissatisfaction with government.[67]

The grand jury that the drafters of the Bill of Rights knew was no doubt more powerful than any known in England. Indeed, the actions of grand juries figured prominently in the beginnings of the Revolution. In 1765, a Boston grand jury refused to indict Colonists who had led riots against the Stamp Act.[68] Four years later, as tensions intensified, a Boston grand jury indicted some British soldiers located within the city boundaries for alleged crimes against the colonists, but refused to treat certain colonists who had been charged by the British authorities for inciting desertion in a like manner.[69] A Philadelphia grand jury condemned the use of the tea tax to compensate the British officials, encouraged a rejection of all British goods, and called for organization with other colonies to demand redress of grievances.[70]

Contrary to the modern situation where secrecy is court imposed and aimed at aiding the prosecutor in gaining an indictment, these grand juries embraced secrecy as an inherent power of their own, independent of any other governmental institutions. Indeed, colonial grand juries became sounding boards for anti-British sentiment. They functioned as patriotic platforms and propaganda machines, constantly condemning the British government and encouraging individuals to support the effort of independence.[71] "In some instances," according to commentators, "the calls to arms were sounded by the grand jurors themselves; in others, the sparks came from patriotic oratory by the presiding judges in their charges to the grand jury."[72 ]The public proclamations of these grand juries were drastically different from anything we know today; they were often circulated in local and national newspapers in an effort to "fuel the revolutionary fire."[73 ]The process for receiving private testimony, outside the presence of the court officials, remained a common practice for a century after the grand jury was enshrined in the Bill of Rights.[74] Throughout the 19th century, grand juries often acted on their own initiative in the face of opposition from a district attorney. It was just such a grand jury that probed and "toppled the notorious Boss Tweed and his cronies" in New York City in 1872. Without the prosecutor's assistance, the Tweed grand jury independently carried out its own investigation in a district that had otherwise been very loyal to Tweed.[75]

In 1902, a Minneapolis grand jury on its own initiative hired private detectives and collected enough evidence to indict the mayor and force the police chief to resign.[76] This same grand jury virtually governed the city until a new administration could be hired. Similar events occurred in San Francisco five years later, when a grand jury indicted the mayor and replaced him.[77]

But beginning about 1910 or so, the grand jury ceased to operate so independently. As the government began to regulate the grand jury more and more, the grand jury became "captured." The practice of allowing a prosecutor to investigate crime allegations and then present his evidence for indictment before the grand jury became routine and evolved into such standard practice that by the end of the nineteenth century it had become a part of "normal" grand jury operations. While previously the prosecutor often did not get a case until after indictment, now he was frequently allowed to present evidence before the grand jury personally. By the turn of the twentieth century, according to one commentator, "with the prosecutor inside the grand jury room, the purposes of grand jury secrecy were no longer apparent."[78]

As the grand jury slowly lost its full historic purpose, grand juries became resigned to a minute corner of the American justice system. American grand juries ceased to initiate their own investigations. "Dramatic, sometimes violent confrontations between grand juries and prosecutors, politicians, legislatures, even within the grand juries themselves, became largely things of the past by about the 1930's."[79]

During this period of the grand jury's slow decline in the states, federal grand juries became, ironically, more important. Although federal grand juries had been a rather obscure element of American criminal procedure before the twentieth century, they stood poised to explode in importance due to the increase of federal criminal jurisdiction by the turn of the century.[80] The growing importance of federal grand juries came at the precise historic moment when state models for grand juries were becoming more and more limited. In fact, because federal grand jury practice looked by necessity to state grand juries as models for federal procedure, the resulting model for federal grand jury proceedings was actually a mere shell of the model intended by the Framers.[81]

From the ratification of the Bill of Rights in 1789, up until and to some extent beyond its codification in the Federal Rules of Criminal Procedure, a Federal grand jury practice went for the most part unregulated by statute.[82] This was due to the limited constitutional jurisdiction of the federal government, and to the scarcity of federal statutes governing criminal justice, a domain traditionally reserved to the states.[83] In its traditional form, the citizen grand jury had come to be seen as an inefficient, unnecessary and possibly dangerous phenomenon.[84] Ultimately, a combination of judicial activism, executive contempt and legislative apathy left the federal grand jury weakened and contained before it had a chance to truly roam free.[85]

1946 ENACTMENT OF THE FEDERAL RULES

In 1946, the Federal Rules of Criminal Procedure were adopted, codifying what had previously been a vastly divergent set of common law procedural rules and regional customs.[86] In general, an effort was made to conform the rules to the contemporary state of federal criminal practice.[87] In the area of federal grand jury practice, however, a remarkable exception was allowed. The drafters of Rules 6 and 7, which loosely govern federal grand juries, denied future generations of what had been the well-recognized powers of common law grand juries: powers of unrestrained investigation and of independent declaration of findings. The committee that drafted the Federal Rules of Criminal Procedure provided no outlet for any document other than a prosecutor-signed indictment. In so doing, the drafters at least tacitly, if not affirmatively, opted to ignore explicit constitutional language.[88]

IV. THE LOST PRESENTMENT POWER OF THE GRAND JURY

The Fifth Amendment to the United States Constitution requires that no person shall be held to answer for a capital or otherwise infamous crime except by a presentment or indictment of a grand jury.[89]


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