Grand Jury Abuse: Time For A More Aggressive Assertion of the Fifth Amendment?

We've come a long, long way from the era of the founding in the United States. Federal grand juries, which were once a means of protecting people from the infamy attendant to being investigated for a crime, are now the secret tool of prosecutors free to rummage with subpoenas through virtually every area of your life. Fear of the unknown has become a prosecutor's best friend. Prosecutors play on that fear, claiming all the while that grand jury secrecy is sacrosanct.

Consider the following: Prosecutors reach out to talk to you. There are suspicions that you have broken the law. You retain a lawyer. Your lawyer speaks to federal prosecutors to get a sense of what's going on.

At this point, you have several choices. Obviously, if you are the target of such an investigation, you have every reason to want to know the nature of the allegations being leveled against you. You press. "Grand jury secrecy," the prosecutor intones and he says little. But this is really little more than self-righteous bullshit. You are pouring through the offal of my life and you must keep secret what you are doing to me? The history of the grand jury is rooted in a different source: A grand jury was supposed to protect a citizen against the abuse of government power. Today the grand jury has been transformed into an investigative Star Chamber.

It is not uncommon for lawyers faced with a pending investigation of their clients to attend what I call a "show and tell proffer." You sit with a prosecutor and a "special agent" or two of the FBI -- practice pointer, all FBI agents are "special." The government lays out in general terms the evidence that it thinks supports criminal charges against you. At this point, you can either respond to the claims or not.

If you choose to respond, your lawyer will insist that you do so under cloak of what is known as a proffer agreement. This is a contract. The government promises not to use your words against you;  you promise to tell the truth. All best are off, however, if you lie. Then you can be prosecuted for making a false statement to federal officials. That's what happened to Rod Blagojevich. Making a false statement is far different from a perjury charge; your statement needn't be under oath, as is the case with perjury, it merely need be on some material fact and made to a federal official acting within the scope of his or her duty. The feds can often make something of nothing by scaring the wits out of a person at a proffer, and then prosecuting them for the lying when all else fails.

A story in today's New York Times reflects this nasty pattern. Barry Bonds will face criminal trial next year lying to a grand jury about his steroid use. (He was under oath then.)  Roger Clemens will be prosecuted for lying to Congress about his steroid use. (He, too, was under oath.) Marion Jones, a gold medal sprinter went to prison for lying to investigators. And now there are reports that the Postal Service bicycling team, the star of which is Lance Armstrong, is under federal investigation and may face charges of fraud, drug distribution, tax evasion and money laundering. Expect a few counts of lying to be tossed in as well. As a general rule, and with few exceptions, it is wise to plead the Fifth whenever the government comes calling. There is no telling how your words will be used against you.

These prosecutions for perjury and false statement would be less frequent with a more transparent grand jury process. I am not suggesting that the grand jury should be opened to public view. What I am saying is that a process that was intended to protect citizens from over aggressive government officials should be open and transparent to those targeted for prosecution. Using grand juries to develop secret cases against folks and then playing hide and go seek with the truth when interviewing targets is obscene; it wreaks of Stalin, not Jefferson.

The early stages of a federal investigation are steeped in fear. A target hopes against hope that someone will listen. Sure, there is an inculpatory cast that be spun for the issues at hand. But considered fairly, the truth is far more complex. A target hopes that by being candid, the government will listen. But candor is a one-way street in this secret process. Too often, grand juries are used as secret tools to rebut the claims made by targets in proffer sessions. Frightened clients are inclined to trust and hope that a true word will deflect the secret ambitions of prosecutors looking for new scalps to mount on their totem pole. The temptation to waive the Fifth Amendment and speak at a proffer is great.

It cannot be good law to permit prosecutors to use secret grand juries to unearth awkward half-truths about a person and then not tell the person about these misperceptions while there is still time to avoid the train wreck and expense of a trial.

I am increasingly inclined to take a hard line about discussions with the federal government on my client's behalf. If the government is going to be coy about speaking the truth, then it seems prudent to consider seriously whether they deserve the right to speak to my client. Sure, the risks of silence can be great: misperceptions can yield a trial, with all the risk that entails. But I'd rather let a jury sort out the truth than play cat and mouse with a government that has turned the use of grand juries on its heads and has transformed the grand jury into a secret chamber of terror.

Don't grand jurors ever revolt and ask the prosecutors tending them behind closed doors why the other side isn't present to offer its point of view?

Comments: (1)

  • Another great post. I've never understood why tho...
    Another great post. I've never understood why those being investigated can't have a representative present during grand jury proceedings. It seems that without an opposing point of view, prosecutors would indeed have no problem getting a grand jury to indict a "ham sandwich"! As to the question of steroid use, if our government had listened to its own experts years ago and not decided to treat steroids in the same way as, say, cocaine and heroin, I wonder if any of this would even be happening? Our country is in dreadful shape and we shouldn't be wasting time and resources on prosecuting athletes who may have used or lied about using steroids. Congress has seemingly already spent more time worrying about steroids than on the war in Iraq or health care.
    Posted on August 22, 2010 at 12:54 pm by J. Sterling Ellison

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