‘Tis the season to be indicted, it seems, especially if you are Tom Delay or one of his cronies. Or at least to appear before a Grand Jury pondering indictments. One of the questions I get most frequently is "How does a grand jury actually work, anyway?" Since grand juries work in secret, and only the jurors themselves, the prosecutor, and the witnesses ever get any insight into how things are going, I thought this season of legal speculation might be the perfect time to pass on a few facts and tidbits about grand juries gleaned from my prosecutorial experience.
Granted, I was a state-level prosecutor, so my experience with Federal Grand Juries is limited to my representation of people indicted by them when I was in private practice, but I’ve worked with the US Attorney’s Office and federal investigators in my local area on joint prosecutions and understand the broader range of power and scope of the Federal system and the increased power of prosecution therein.
What is a Grand jury anyway? A grand jury is composed of citizens who hear evidence of an alleged crime and decide whether or not charging someone is warranted under the given facts and applicable laws. In the Federal system, a grand jury is comprised of 16 to 23 members. In the state systems, the number of jurors required varies according to state law. The grand jury can consider evidence regarding defendants who have already been arrested (such as someone caught for a DUI) or against someone suspected of committing a crime but not yet under arrest (such as a drug cartel where you would not want to tip off the entire operation by arresting any individuals involved until the entire operation had been indicted to be arrested at once).
The Fifth Amendment of the Constitution requires that any charge that rises to the capital level (as in a felony) be charged through a grand jury at the federal level. This is a process that dates back to the Magna Carta, and a good summary of the history of grand jury process can be found here. State requirements, as always, are governed by State law.
Who is in the room during the grand jury and how does it work? The constants in the room are the prosecuting attorney, the members of the grand jury, and the court reporter who transcribes the testimony, questions and interaction between witnesses and the jury. There is no judge, no criminal defense attorney nor any defendant in the room — although a "subject" (someone at whom the prosecutor is looking very closely) can be subpoenaed to testify.
A regular grand jury begins with the prosecutor giving a short summary of the proposed charges for the alleged defendant. Then, various witnesses are called to testify or to present evidence in the form of documents, video, scientific testing and other means. For example, you might have the police detective come in and testify and show a tape of the defendant caught holding a television while standing half in and half out of the broken window of the store. (Those are always fun and fairly easy indictments as a prosecutor.)
Once the witnesses conclude their testimony, the prosecutor presents a "true bill" or "indictment" to the grand jury, basically a typed statement of the law and its application to the particular defendant(s) and then leaves the room. The jurors then review the document and either vote for or against the charges in it — or ask for additional charges to be added or deleted as they see fit, in some cases. In the federal system, a simple majority is all that is needed to vote an indictment; this may vary by state. The grand jury foreperson and the prosecutor then sign off on the indictments, and the cops go out and arrest the defendant and pull him or her in for an arraignment, unless arrangements have been made with the prosecutor for that defendant to turn himself in at a later time.
How is Fitzgerald’s Special Grand Jury different from this? In the Federal system, a special grand jury was begun in the 1970s as a means to deal with the problem of organized crime. The cases that were brought against the web of criminal enterprises that the mob had were so vast — and so overwhelmed the operation of a regular grand jury — that the special investigative grand jury was developed so that prosecutors and investigators would have a more flexible partner in bringing these criminals to justice. The jury serves as an additional investigative unit, in a sense, by bringing in witnesses who are under subpoena, placed under oath, and then subject to criminal perjury charges if found lying to the jury. This can be used as a means to pressure their testimony further against any and all co-conspirators if perjury can be proved. (Sound familiar?)
The Special Grand Jury works hand in hand with the prosecutor and the FBI or other governmental agents to investigate the whole of the case. That means all of the many tentacles that may be involved in any given large criminal enterprise or, say, an average White House Iraq Group meeting. Here’s a direct quote from the ABA’s website that sheds a little light on how much fear a federal grand jury can instill, even in lawyers:
"There are many occasions where a person who was issued a subpoena to appear as a witness or to produce documentation ends up becoming a "target" or "subject" of an investigation, then indicted by the same grand jury the person thought he or she was simply assisting."
Kind of puts all the spin on whether or not someone is a "target" going in to their testimony in perspective, doesn’t it?
Can the prosecutor really indict a ham sandwich? The short answer to this question is "not likely," but it depends on several factors. Most grand jurors take their jobs very seriously. Having had to sit in judgment of my fellow citizens as a prosecutor, I can tell you that it is a solemn job once you realize the gravity of what you are doing. You place people’s freedom in jeopardy, potentially sending someone away for their lifetime to jail. You hold the safety of the community in your hands if you allow a dangerous and guilty person to go free. Grand juries generally meet in a courtroom setting or in a deliberation room off the main courtroom area, and are opened daily by the presiding judge reading an oath to them on their duty as jurors (at least that is how it was done in my jurisdiction, and you could see the jurors straighten up and accept the mantle of responsibility during the course of the reading by our local Judges).
Prosecutors have a quasi-judicial role, in that they operate as attorneys for the State or Federal government, but they also must make decisions daily on whether or not a particular defendant ought to be charged at all and, if so, how hard the hammer should fall. It can be a very difficult thing, frankly, to know that your decision may break up a family by placing the father in jail for a lengthy prison term, depriving the rest of the family of a source of income (however illicit that money might be in some cases), and knowing that the children will have to live with the knowledge that dad (or mom or grandpa or whomever) is a criminal. But the victim’s rights and the community’s safety have to weigh in very heavily in these decisions — and ought to do so — and you eventually settle on what you think is just and appropriate under the full weight of what has been done by each individual. (This same set of considerations is what the grand jury must weigh as well.) There are some prosecutors, obviously, who are bad actors — who bring charges under vengeful circumstances or for political reasons, just like White House aides might abuse their power, say, for political payback — but in my experience as a prosecutor and as a criminal defense attorney, those are fairly rare circumstances over all.
All this to say that an easily led grand jury is rare in my experience — there have been a number of occasions where indictments that were brought (ones that we felt might be weak at the outset and were argued over by all of us on the staff) were sent back as a "no true bill" or a non-indictment by the grand jury. Sure, a prosecutor speaks with a lot of authority and influence in front of a jury, and has most of the power in terms of calling witnesses and presenting evidence. But the portrayal of the grand jury as weak-minded and told what to do truly does not square with the outspoken frankness of most grand jury members I dealt with in my community.
Let me tell you, grandmotherly types are often the ones who have the most to say, and who don’t put up with any weaseling from witnesses. (Are you listening, Karl?) Jurors do not leave their common sense at the door, and most can sense a liar or someone who is trying to hedge pretty easily. You would be amazed at how illuminating the pressure of the witness chair can be, and jurors really have nothing else to do but sit, listen and watch your every tick — liars stick out, and jurors can see that. Saying the prosecutor can do whatever he or she wants with a grand jury is immensely disrespectful to the members of the jury, and not something that I have found to be true in my personal experience.
How long is the term of a Grand Jury? Generally, a grand jury is empaneled federally for 18 months. A Special Grand Jury may go for 36 months if extensions are fully used to complete investigations. State terms vary.
How do defendants find out they have been indicted? Sometimes their attorneys will find out from the prosecutor’s office directly, especially if they have some idea that there is a possible indictment upcoming, that the grand jury is meeting, and they call your office a lot. In my area, the names get published in the local newspaper — what a way to wake up, eh? Sometimes they find out by being frogmarched in handcuffs out of their place of business. Ahem.
Update: Great summary of the difference between target letter and indictment notification on TalkLeft at this location. As always, excellent information.
Next up: Potential Charges in Traitorgate