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Monday, December 05, 2005 | This is part one in a two-part series.
Federal prosecutors have been making plenty of news lately, both locally and nationally. Two San Diego city councilmen went to trial this summer on corruption charges brought by the U.S. attorney. Across the country in Washington, D.C., the vice president’s former chief-of-staff was indicted by a federal grand jury investigating the leak of the identity of a former covert CIA agent.
Investigators and prosecutors have been probing City Hall as part of an ongoing public corruption investigation.
But in order to bring criminal charges in these high-profile federal cases, prosecutors didn’t simply bring an indictment to federal court. Before going to trial or even filing charges, prosecutors and investigators had to build a case based on documents, transcripts and testimony behind the closed doors of a secret grand jury proceeding.
But while the indictments that stem from such grand jury investigations often make the headlines, it is less often that the grand jury process itself becomes news.
However, grand juries are the subject of an ongoing debate within the legal world. Some experts contend that the process is overly secretive and out-dated. Others argue that grand juries remain a legitimate and necessary part of the legal system.
Critics of the grand jury system say that the process is increasingly being used to intimidate groups who are at odds with the government’s current policies.
In addition, these critics argue that there are numerous institutional faults with the process. They say prosecutors exclusively control the selection of jurors and maintain extensive subpoena powers, which critics say are often used to harass members of a particular political group.
In response, supporters of the grand jury argue that any institutional kinks are ironed out by an honest and professional force of federal prosecutors, who use their powers only for legitimate means. They say that the only people who should be afraid of grand juries are those who stand to be indicted by them, that the system is honest and that its secrecy is necessary to protect witnesses.
Further, proponents of the system argue that it serves as an additional gauntlet for prosecutors to run, without which defendants would be denied a crucial element of their prosecution for serious crimes.
The Voice of San Diego decided to sit down with a few people who could give both an explanation of, and arguments for and against, the grand jury process.
The Voice convened a round-table discussion of grand juries, inviting along two former federal prosecutors, Tom McNamara and John Kirby; two defense attorneys, Jeremy Warren and Julie Blair; and two activists, Danae Kelley and David Agranoff, who recently found themselves at the center of the debate over the legitimacy of the grand jury.
McNamara and Kirby are former federal prosecutors with more than 20 years of collective experience of working with grand juries. They now work as white-collar criminal defense attorneys for La Bella & McNamara LLP.
Warren is a defense attorney who recently represented Agranoff, a vegan activist who was jailed in July for refusing to testify to a grand jury investigation. Kelley was also jailed for refusing to testify, her defense attorney is Blair.
The United States federal grand jury finds its roots in England. Historically, the grand jury was envisaged as a “buffer” between the king and his subjects. The grand jury was created to prevent powerful individuals from bringing to trial whomever they liked, without any need to prove probable cause.
With the introduction of the grand jury, the accuser (or prosecutor) had to make his case before a selection of 12 men, who decided whether the charges were legitimate, and whether a trial was warranted.
The English colonists brought this system to America, and it formed a prominent part of the pre-Civil War legal system in this country.
According to the “Handbook for Federal Grand Jurors:”
“The grand jury as an institution was so firmly established in the traditions of our forebears that they included it in the Bill of Rights. The Fifth Amendment to the Constitution of the United States provides in part 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.’”
These sorts of grand juries only apply to proceedings brought in the federal courts. That generally means crimes that are being investigated by federal bodies such as the FBI or DEA.
These days, a grand jury is comprised of 23 people, drawn at random from the electoral roll. The grand jury’s primary task is to consider evidence brought in front of it by federal prosecutors. The jury is then asked by a judge to come to a decision as to whether a person should be tried for a serious crime or not.
“Essentially, they are an investigative vehicle,” said Kirby, “by which we can investigate a crime and then, at the appropriate time, seek an indictment.”
That investigation is done in secret. The reasoning for this, Warren said, was originally to protect the reputation of the person being investigated. The proceedings are secret so that if an accusation turned out to be spurious, the accused would keep his reputation intact.
However, Warren said the grand jury process, and the arguments for its secrecy, have greatly morphed over time.
“The joke you hear a million times over is the grand jury would indict a ham sandwich if the prosecutor asked it to,” said Warren. “… There’s very little protection for the accused, they’re not allowed to have a lawyer with them, they’re not allowed to present evidence, and in fact there’s no constitutional right that a prosecutor present exculpatory evidence.”
Warren argued that the investigation is left largely up to the good faith of the prosecutor.
If a prosecutor knows, for example, that there is a witness who can prove the defendant’s innocence, he should, in good faith, call that witness before the grand jury. Warren’s argument, however, is that a prosecutor does not have to do so, and that there are no checks on him to ensure that he does.
Kirby pointed out, however, that although there may be no constitutional obligation for a prosecutor to act in good faith, the Department of Justice does require prosecutors to present evidence that could prove a defendant’s innocence.
The members of a grand jury are chosen in much the same way as juries are chosen for trials. Names are chosen at random from an electoral register, and, according to the Handbook for Federal Grand Jurors, should be from a “fair cross section of the community in the district or division in which the federal grand jury convenes.”
However, as Agranoff, Warren and Blair pointed out, the very nature of jury duty lends itself to certain demographic groups.
A grand jury will typically meet for one day each week over an 18-month period, and most working people or young people will, they said, find some way out of sitting on a grand jury. Thus, the defense attorneys and their clients argued, grand juries tend to be stocked with elder, often retired jurors.
McNamara said the last 15 years or so have seen a concerted effort on the federal side to make grand juries more representative of the community at large.
Agranoff said that certainly wasn’t the case in the one time he stood before a grand jury.
“They seemed mostly like older white people,” he said. “… I got the impression that the majority of them were retired.”
McNamara and Kirby acquiesced that the nature of the grand jury system does lend itself to juries that are comprised of people who do not have jobs that they can leave for one day every week for more than a year. Warren put it differently.
“Anyone who wants to can get out,” said Warren. “That’s why we always joke that there’s nothing worse than being tried by 12 people who weren’t intelligent enough to get out of jury duty.”
Kirby said that’s a little unfair. He said in his experience, most jurors are involved in the process.
“To my surprise, the majority of those folks are paying attention and are asking questions,” he said. “It has not been my experience that it’s just a big love-fest and everybody just rolls over.”
Regardless of the fairness of the grand jury process, it is not a trial. Once the jurors have been presented with a case, and have seen documents and heard witnesses brought by the prosecutor, they will be presented with an indictment. The jury will then vote whether or not to indict the defendant.
“It is the starting gun for the real public charge,” McNamara said. “The public trial runs from there.”
Occasionally, however, the grand jury proceedings will be held up when a witness who has been subpoenaed refuses to testify. That’s exactly what happened this summer when Agranoff and Kelley, two animal rights activists from San Diego, refused to cooperate with an investigation being conducted by the FBI.
Part two: Two activists who were jailed for refusing to give evidence to a grand jury question its legitimacy and former federal prosecutors make counter arguments.
Please contact Will Carless directly at