The Secret Games the Government Plays
We call trials a search for the truth, but the fact remains that what juries see at trial is often only the tip of the iceberg. Just beneath the surface, a massive and sometimes ugly reality supports the public display of testimony presented in open court. This is especially so in criminal cases, where something less than the whole truth, and nothing but the truth, is not just tolerated, but expected, even condoned.
The law not only tolerates this, the law encourages deception, by granting privileges, immunities and secrecy to the very government we naively believe to operate in the name of the people. We tolerate this deception while at the same time demanding transparency and paying lip-service to such notions as the presumption of innocence and the right to a fair trial.
Consider how grand juries are used in the federal courts.
A grand jury is a secret body of citizens, some 23 in number, that sits cloistered out of public view, typically in a designated room in one of the federal courts in the state, located in Bridgeport, New Haven or Hartford. What we’re told in our civics class is that a grand jury is one of our great protections against an arbitrary government; grand jurors stand between the government and a citizen accused of a crime, in theory, critically appraising the evidence the government presents to it before deciding whether to indict, or formally charge a person with a crime.
In fact, the grand jury has evolved into a secret club the government too often uses to batter reluctant witnesses, and to deprive them of counsel during investigations. In a recent investigation of gifting tables on the Shoreline, witnesses were often given a choice when an Internal Revenue Service agent pounded on their door asking questions: either submit to an interview, or we will subpoena you to a grand jury. And once the witness arrived at a grand jury, they were told, as witnesses always are in a federal grand jury, that their lawyer had to sit out of the room in the hall.
If you’ve ever read grand jury transcripts, which the government will give to a defendant in anticipation of trial, usually toward the very end of a case, you might be surprised to learn that grand jury questioning by federal prosecutors is sometimes aggressive, even abusive. In one case, a senior prosecutor resorted to insulting a well-educated woman, taunting her with basic dictionary definitions of common words when he disagreed with her testimony, treatment that no lawyer representing the woman would have tolerated. The grand jurors sat silently by, the transcript reflects.
Grand jury proceedings are secret. The textbooks say that is because they serve to protect those potentially accused of a crime. Why publish to the world that you are being investigated for some notorious crime if, in fact, you are never charged?
In fact, secrecy is maintained long after charges have been filed. A defendant faces a long and sometimes bitter fight to obtain the grand jury transcripts of witnesses who testified in his own case long after an indictment, and long after his reputation has been destroyed by the government press agent’s release to the media about the new charges lodged. The grand jurors themselves are sworn to secrecy once selected, becoming, in effect, junior G-men, allied by means of something like the Stockholm Syndrome with the very prosecutors who could turn on them if they dared utter the truth to the community.
But more shocking that what goes in secret grand juries are the conversations that take place in witness rooms, sometimes even the hallways, of the courts. Well out of the view of jurors, deals are sometimes cut, threats are sometimes uttered, to induce witnesses either to testify or not.
I’ve been trying for weeks now to persuade a lawyer representing a witness in a case of mine to let me speak to his client. I had subpoenaed her to a trial earlier in the year. When she got to the courtroom, she pled the Fifth Amendment to avoid testifying. The standard for such a pleading is simple: Would testimony tend to implicate the person in a crime?
What I wanted the jury to hear, in open court, is what she told a secret grand jury — her testimony was vital to what I was trying to prove in defense of my client. In other words, I wanted her to repeat what she said under oath in secret in open court. I’ve confirmed that she was warned by prosecutors before appearing at trial that if she repeated what she said to the grand jury, she could be charged with perjury or obstruction of justice. A witness reports having viewed some version of this species of thuggery with other potential witnesses we sought to call.
This disgusting bit of cherry picking by prosecutors worked. To avoid prosecution, the woman refused to testify in public. The government, apparently, did not view it a crime to lie to the grand jury, if, in fact, prosecutors truly believed what she said was a lie. To this day, the woman’s lawyer refuses to let her speak to me, fearing she might be exposed to retaliation by the government, truth be damned.
What I suspect happened is something far more sinister, far more insidious. Federal prosecutors decided what served their purposes, and then used threats of prosecutions as a trial tactic to influence testimonial decisions.
A defense lawyer who did likewise might well face charges of witness tampering, or obstruction of justice. But when a federal prosecutor engages in such conduct, the judiciary winks — it’s all in a days work for the Justice Department.
Learning about the chicanery engaged in by prosecutors in the name of justice is almost impossible. Why? The law recognizes what is called a law-enforcement privilege that shields lawmen from having to testify about their activities. I tried recently in a state case to learn about what inducements witnesses are offered to testify in the form of housing, cash allowances and other benefits, in the state’s witness protection program. A judge prevented me from doing so, citing a privilege the government enjoys to keep its actions secret.
In those rare cases where government deception does make the public record, you might think the rhetoric of accountability might result in successful litigation against prosecutors. Wrong again. Prosecutors enjoy broad immunity from suit.
Secrecy, privilege, immunity — a fateful troika of legal concepts cloaking so-called ministers of justice in a dark, impenetrable veil. The sunshine of a courtroom is framed by dark clouds, clouds most jurors would be outraged to learn about, clouds the judiciary fosters in rulings that deprive the courtrooms of the very thing it is supposed to showcase — the truth.