Judging the Grand Jury

In the six months since Daniel Ellsberg's Pentagon papers began to appear in the press, two different grand juries have been busily prying into the activities of just about everyone who was even remotely involved in the caper. Thus far, the results of the juries' activities have been both confusing and controversial.

In Los Angeles, a panel returned an indictment against Ellsberg, jailed a colleague who refused to testify, kept on investigating, and then took the unusual step of indicting Ellsberg a second time on different charges. In Boston, a grand jury that began its investigation last July is still trying to question a wide variety of unwilling witnesses, including Princeton Law Professor Richard Falk, M.I.T. Linguist Noam Chomsky, Journalist David Halberstam and Leonard Rodberg, an aide to Alaska Senator Mike Gravel. The Boston jury has yet to hand down an indictment.

The expanding hassle has revived some longstanding criticisms of an institution that is often celebrated as a bulwark of individual liberties. With a history stretching back through centuries of English jurisprudence, the grand jury theoretically exists to weigh the state's case against an accused person, to return an indictment if the evidence seems persuasive, but to block prosecution of the poor fellow if it is not. In practice, the grand jury has inspired a long list of distinguished critics, including William Howard Taft, Roscoe Pound and Felix Frankfurter. Speaking for today's almost unanimous academic experts, Stanford Law Professor Herbert Packer says flatly: "The theory is awfully good, but it doesn't work at all."

Secrecy. Many historians date the English grand jury from the reign of King Henry II in the 12th century. It was created as an accusatory body made up of twelve knights or twelve "good and lawful men" in each community. It identified local offenders and specified the charges they should face before a traveling judge. As official prosecutors increasingly took over the accusatory function, the grand jury began hearing witnesses in private and evolved into a buffer between the people and the state, passing on the merits of any serious charge before it was made public. Secrecy was imposed partly to protect anyone who had been wrongly accused--and to protect the grand jurors themselves.

In the American colonies, many local grand juries, shielded by the secrecy rule, voted down indictments sought by the King's prosecutors. (Example: in 1765, a Boston grand jury refused to indict the leaders in the Stamp Act riots.) Today the grand jury is preserved in the Constitution, which states that "no person shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a Grand Jury." Over the years, however, the increasing complexity of both law and society has changed the grand jury's role. As Harvard Law Professor Charles Nesson puts it: "Initially, grand juries found out what was going on. Now, in much larger communities, grand juries simply do not know what is going on. They need someone who can present to them what happened."

The grand jury system varies from state to state. In many areas judges have long chosen grand jurors from among persons known to them or recommended by previous jurors. To answer charges that such groups are "elitist," federal authorities and some state courts now choose grand jurors from voter rolls. The jurors number from twelve to 23 and sit for three to 18 months, depending on the locality. They normally meet a few days each week (and make $20 a day on federal panels).

The grand jury has full power to make accusations on its own, but such initiatives generally appear only in broad social reports, like that of a San Francisco grand jury complaining about the fact that "city life is no longer safe." Two weeks ago, the same body was even moved to issue a critique of grand jury procedures.

The more significant aspect of grand jury work remains the consideration of criminal indictments. Most such deliberations occur with remarkable speed. The prosecutor appears before the grand jury, briefly outlines the facts of his case, and asks for an indictment. The grand jury generally approves whatever charge the prosecutor indicates that he wants, apparently on the theory that he would not make an accusation if he could not back it up in court. As a result, prosecutors almost always get their way. "I have never known a grand jury to refuse to indict," says one prominent California defense attorney. "Never! They are just rubber stamps for the prosecution."

Though the majority of cases get routine treatment, the prosecutor sometimes decides that he will need a grand jury investigation to shed more light on a case. It is these investigations that generate most of the controversy, for they enable the prosecution, acting on behalf of the grand jury, to use all of the jury's vast powers. The prosecutor can subpoena any witness to appear, ask him virtually anything and compel an answer by the threat of a jail sentence for contempt of court. The subpoenas can be fought in court, but that is a costly and usually fruitless effort. In the usual criminal investigation, says U.S.C. Law Professor Martin Levine, "no person has a legal duty to cooperate with the prosecutor, or with an FBI agent--no duty to tell him anything. But with the grand jury doing the asking, he is required to cooperate, unless he is protected by the Fifth Amendment."

Even if a witness does invoke the Fifth Amendment, the grand jury can use a special procedure for loosening tongues. A witness can be granted immunity from prosecution, thus eliminating the whole question of selfincrimination. But this grant of immunity may be less than complete. Under the 1970 Organized Crime Control Act, a witness who reveals details of a crime in which he was involved can still be prosecuted on evidence that is developed without use of his grand jury testimony. Does this violate the Fifth Amendment? In a line of cases going back to 1892, the Supreme Court has held that a grant of immunity must be total, but the court has agreed to rule on the constitutionality of the new law.

The defense has no comparable capacity to force information from witnesses. In addition, the secrecy rule makes it difficult to find out what happened within the grand jury chamber. No judge is even permitted inside, and all witnesses testify alone, though they are occasionally allowed to leave the room to consult with their lawyers, who may wait outside. No formal defense is presented, but a potential defendant is generally permitted to say anything he wishes. Grand juries typically leave the questioning to the district attorney and rarely exercise their power to call witnesses.

Gerald Hawes, an HEW employee who was serving as a grand juror in California's Marin County, recently resigned in disgust at such jury docility. Hawes was on the panel investigating George Jackson's killing in San Quentin, and for background he had read the transcript of the Angela Davis grand jury hearing. Not a single question was asked by a juror in that case, Hawes reports, and in the Jackson case, he says, the prosecutor specifically urged the jurors to ask no questions. Several grand jurors in the Ted Kennedy Chappaquiddick case also reported feeling frustrated; they wanted to probe beyond the evidence submitted.

Fishing. Most prosecutors are understandably eager to make use of the grand jury's investigative powers. Robert Mardian, chief of the Justice Department's Internal Security Division, has said that grand juries in pursuit of wrongdoers "can run their tail off." Which is precisely what bothers many critics. Particularly in cases with political implications--like the Pentagon papers investigation--the Government, say some legal experts, does indeed use the grand jury to run the tail off assorted dissenters, either for pure harassment or as part of "a fishing expedition" to see what unexpected information the questioning may turn up. "Grand jury subpoenas are for fishing expeditions," says Columbia Law Professor Abraham Sofaer. But he is quick to add that such expeditions are not necessarily harmful. What begins as a fishing expedition may lead to an exposure of organized crime or official corruption.

In Chicago, a special grand jury set out to discover what really happened in the police shooting of Black Panther Leader Fred Hampton. After listening to no fewer than 41 witnesses, it eventually charged Cook County State's Attorney Edward Hanrahan with conspiring to obstruct justice by covering up for the police (TIME, Sept. 6). Hanrahan, who presumably enjoyed the acquiescence of past grand juries, is now attacking the indictment on the ground that the special prosecutor exerted undue influence on the jurors.

Whatever the verdict in any given case, there is little doubt that the grand jury's sweeping powers now belong primarily to the Government, and that this gradual and unofficial transfer of power has created great possibilities for abuse. Should the grand jury system then be abolished? Many lawyers agree with Defense Attorney Percy Foreman that "grand juries are for the birds. They are beyond saving." England abolished them in 1933 after a century of increasing disuse. Even if such a step were desirable in the U.S., however, it would require a constitutional amendment.

Alternatives. Some considerable reforms could alleviate the worst difficulties while preserving the grand jury's real virtues. To begin with, its function of approving indictments sought by prosecutors might be curtailed. In some states, D.A.s can already bypass the grand jury, and simply issue an indictment themselves or go before a judge for a preliminary hearing; at such hearings the defense can attend and cross-examine any witnesses. The process is much fairer. Even a few prosecutors, notably Philadelphia's Arlen Specter and Houston's Carol Vance, favor it as a way to speed the pretrial process.

For investigative proceedings in criminal cases, Boston Civil Liberties Lawyer William Homans and Harvard Law Professor James Vorenberg suggest that lawyers should be permitted to accompany clients to advise them, though not necessarily to speak for them or to engage in debate with the prosecution. Some legal scholars also favor the rule in some courts that entitles a grand jury witness to a transcript of what he says; elsewhere such transcripts are withheld and sometimes used to trap witnesses who change their stories at the later trial. Finally, Columbia's Sofaer proposes what may be the most important reform of all: more rigorous standards for investigations that touch on the First Amendment rights of freedom of speech, religion and political assembly. Before an investigation, Sofaer suggests, a court should determine whether any First Amendment issues are involved, as in the controversy over the Pentagon papers. In such cases, the Government would have to convince the court it had good reason for calling a witness.

In the wake of the Pentagon papers investigation, and others with political overtones, even such sober observers as Harvard's Vorenberg profess to see present-day grand juries as an equivalent to the congressional committees of the McCarthy '50s. Unless there is reform, such criticisms are likely to grow louder.

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