Am I alone in wondering whether federal prosecutors in Connecticut are abusing the grand jury process? When I discuss the issue with fellow members of the defense bar, folks get nervous. Blowing the whistle on Uncle Sam could hurt either them or their clients. Funny how the topic of grand jury abuse scares defense lawyers; it should scare prosecutors.
The federal constitution requires the government to seek an indictment, a decision by members of a grand jury that there is probable cause to believe a crime has been committed, before arresting one of us for a felony. Constitutional theory holds that a grand jury shields folks from arbitrary government conduct.
In recent years, it seems as though the grand jury has been transformed into a not-so-secret club used to coerce pleas. Here’s how the new game works.
A client is arrested by means of a criminal complaint. No grand jury hears the government’s evidence. A federal agent swears to an affidavit, and this affidavit accompanies a complaint written by a prosecutor to the chambers of a judge who may then sign an arrest warrant.
A citizen is transformed by these means into a defendant and hauled before a federal magistrate. At this initial appearance, the issue of bond is heard and a scheduling order entered. Because no grand jury has been sworn, the defendant is informed that he or she has a right to a probable cause hearing conducted by a judge in open court.
But here is the rub. When a prosecutor initiates a case by means of a complaint, he or she is free, within Department of Justice guidelines, to select the charges on which to proceed. Presenting a case to a grand jury ups the ante in some cases: prosecutors are required to charge the most serious offenses they think than prove. In other words, a defendant might well have a serious incentive to avoid a grand jury, where his or her sins might get a more searching, and consequential, review.
This incentive can yield the following dance: If a defendant refuses to waive the right to a probable cause hearing, prosecutors can threaten to rush the case to a grand jury before the probable cause hearing takes place. Remember, grand jury proceedings are secret: no defense lawyer stands in for the accused to confront government witnesses in these secret sessions. However, probable cause hearings are public, and a defendant’s lawyer can take a shot at the government’s witnesses. Assert your rights and suffer is the message.
I’ve seen the following tap dance: A defendant is arrested by way of complaint. He appears in court. The prosecution suggests that if he does not waive the probable cause hearing it will present his case to a grand jury before the hearing takes place. At that grand jury, the government will pull out all the stops, seeking the most serious charges and consequences it believes are supported by the facts. Translated into pragmatic terms: If a defendant wants a better deal, he should waive the probable cause hearing, eliminate the need to appear before a grand jury, and take his chances on whatever horse-trading his lawyer and the government can accomplish. The federal guarantee of a grand jury review of government charges becomes a threatened club rather than a promised protection against government abuse.
I do not know whether statistics are kept on how federal prosecutions are initiated in Connecticut. I rely here on anecdotal information. But I can say that in the past several years, it appears to me that more and more prosecutions are initiated without use of a grand jury.
This practice is particularly offensive in those cases in which the government builds its case by means of an investigatory grand jury but then elects to initiate an arrest without grand jury approval. At once, the secret grand jury, which is supposed to serve as a means of protecting people from the arbitrary use of government power, is transformed into the very sort of monster from which it was supposed to protect us.
Constitutional rights can be waived. Nothing prevents a person accused of a crime from cutting the best deal he or she can to salvage their life and liberties. But even so, use of the grand jury as a bargaining chip is not exactly what the framers intended. But who cares about them, right? Certainly not the courts.
Reprinted courtesy of the Connecticut Law Tribune.