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Reviving federal grand jury presentments.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .(1)

In March 1992, Rockwell International pled guilty to five environmental felonies and five misdemeanors connected with its Rocky Flats plant, which manufactured plutonium triggers for nuclear bombs. Prosecutors were elated; the $18.5 million fine was the largest environmental crimes settlement in history. The grand jury, however, had other ideas. The majority of the grand jurors wanted to indict individual officials of both Rockwell and the Department of Energy (DOE), but the prosecutor had resisted individual indictments. So the grand jury, against the prosecutor's will, drew up its own "indictment" and presented it to the judge.(2) Its action has confounded legal scholars: what is the status (or even the correct name) of this document?

The consternation this question has caused is a measure of the confusion surrounding grand jury law. Although grand juries had considerable independence and were a major avenue for popular participation in the early Republic, their powers have dwindled. Courts have clouded the issue by periodically reasserting the grand jury's traditional powers, then suppressing them again. The Supreme Court has largely been silent.

The number of recent articles praising grand juries points to a revival of interest in this institution. Commentators see the grand jury as an antidote to citizens' alienation from their government. One author urges the recreation of administrative grand juries.' Another argues for an expansion of the grand jury's reporting function.(4) When she was a state's attorney, Attorney General Reno made a point of using grand juries to investigate social ills in Florida.(5) Despite this growing interest, however, no one has recently discussed resurrecting the federal grand jury's presentment power.(6) At common law, the presentment function was at least as important as the indictment; its inclusion in the Constitution shows its significance to the Framers.

A presentment is a charge the grand jury brings on its own initiative. In contrast, an indictment is almost always first drawn up by a prosecutor and then submitted to the grand jury for approval. In federal courts, a presentment cannot by itself initiate a prosecution. To begin a prosecution, the prosecutor must sign the document.(7) The act of signing, which is wholly within the Executive's discretion, transforms the presentment into an indictment. While a presentment is capable of serving as a formal charging document, its main function is to publicize. The Federal Rules of Criminal Procedure, however, prevent the grand jury from publicizing its conclusions by giving the judge discretion to seal documents such as presentments.

Although restoring the presentment power would therefore not automatically initiate a prosecution of Rockwell and DOE officials, the publicity of a grand jury accusation would serve three key goals. First, allowing presentments of government officials and contractors would check prosecutors' tendency to favor other members of the executive branch. The grand jury, a body of private citizens, is more likely to be free from bias than a politically beholden prosecutor; it can avoid even the appearance of impropriety. Second, presentments would prevent frustration and disillusionment among citizens who are told to act independently, who perform long hours of public service, and whose opinion is then suppressed because of a plea bargain. Not surprisingly, the Rocky Flats grand jury was bitter at not even being able to express its opinion after a two-and-a-half-year investigation. Third, if jurors could take a more active role in the administration of justice, they would grow in their knowledge of public affairs and in their attachment to American democracy.

Part I of this Note examines the origins and modem fate of the federal grand jury presentment power. In the early Republic, the power was frequently used; in the nineteenth and twentieth centuries it declined and became mired in confusion. The Federal Rules of Criminal Procedure, promulgated by the Supreme Court in 1945, affirmed and hastened this decline. The Rules deliberately make no provision for presentments; they ignore the Constitution's language. Part I then turns to subsequent decisions and the current muddled state of federal grand jury presentment law. Part II discusses the Rocky Flats case, including the specific factors that prompted the grand jurors' revolt and their frustration with the criminal justice system. Part III suggests steps for safe revival of the presentment power. These include limiting presentments to government officials and contractors, providing for declaratory judgment at the option of the accused, and allowing the grand jury appropriate staff and protection from early discharge.

I. The History of the Federal Grand Jury Presentment Power

The history of federal grand jury powers is the story of descent into confusion. In emphasizing the grand jury's function as a shield against government oppression, historians have glossed over its use as a sword. Before the Constitution, the colonies relied heavily on grand juries to perform accusatorial, administrative, and even legislative functions. Early federal grand juries remained spirited and regularly issued presentments. In the twentieth century, however, grand jury law became murkier, particularly with the passage of the Federal Rules of Criminal Procedure. Lawyers and judges now doubt the existence, let alone the extent, of the presentment power.

A. Background: The Grand Jury Before the Constitution

The grand jury was a creation of English medieval law carried to the American colonies and later formally enshrined in the United States Constitution. By including the grand jury in the Bill of Rights, the United States inherited not only the institution's defensive function, but also its accusatory function.(8) Indeed, the common law oath of a grand juror "says not a single word about indictments; on the contrary, at common law the grand jury swore to ~diligently inquire and true presentments make.'"(9) In 1758, Blackstone gave the classic definition of a presentment:

A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king.... upon which the officer of the court must afterwards frame an indictment, before the party presented as the [perpetrator] can be put to answer it.(10)

Although historians chiefly celebrate the English grand jury for refusals to indict in the late seventeenth century,(11) grand juries also won respect for making accusations against the Crown's desires. Grand juries took advantage of their wide investigative powers and gained prominence in fighting government corruption by issuing presentments against royal officials.(12)

The same pattern of grand jury independence crossed the Atlantic to the colonies. Indeed, since the colonies lacked an efficient constabulary, colonial grand juries exercised greater independence than their English counterparts.(13) American grand juries had a penchant for presenting government officials. These presentments could be for crimes or noncriminal violations of the public trust. The latter type of accusation would now, and sometimes then, be called a report.(14) Colonies that lacked a representative legislature often turned to grand juries as a substitute; grand juries regulated areas higher officials did not address.(15) As tensions between the colonies and the mother country grew, grand juries played an increasingly prominent role. They not only refused to indict,(16) but also issued angry and well-publicized presentments and indictments against British officials and soldiers.(17) Because of its boldness and independence in both defending and accusing, the grand jury emerged from the Revolution with enhanced prestige.

B. Federal Grand Juries in the Early Republic

Although historians typically portray early federal grand juries as mere tools of the central government,(18) an examination of actual charges and presentments reveals a different picture.(19) After the Constitution's ratification, grand jurors continued to take initiative in making presentments.

Given that the Feleralists wanted to assuage Anti-Federalist fears of a powerful central govemment, it is not surprising that ratification documents emphasized the grand jury's shield rather than its sword.(20) Early post-ratification charges to and writings about the federal grand jury, however reveal an equal if not greater concern for the sword. Without fail, judges and justices reminded grand jurors of their oaths to make diligent inquiries and true presentments.(21) Indeed, judges mentioned presentments more often than indictments. In his charge to the first grand jury impaneled for the Circuit Court for the district of Delaware, Justice Wilson urged grand jurors: "[Y]ou will be sedulous that criminals be discovered and punished, and you will be equally sedulous that the innocent be guarded and protected. With regard to both, it will be your zealous effort, as it is your unquestionable right, to make diligent enquiries, and to offer true presentments."(22) In a lecture to students at the University of Pennsylvania, the Justice emphasized the grand jury's independence from the prosecutor:

[Grand jurors] are not appointed for the procecutor [sic] or for the court: they are appointed for the government and for the people: and of both the government and people it is surely the concernment, that ... all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment, which the law denounces ....(23)

Following such admonitions, early federal grand juries used their power of presentment both to accuse" and to present grievances to the government.(25) Like their English and colonial predecessors, federal grand juries continued to present government officials; the most controversial presentment by a federal grand jury was an accusation against a U.S. Congressman.(26)

In the early years of the Republic, one government official suggested that a federal prosecutor had a duty to indict if the grand jury made a presentment. In 1794, Attorney General William Bradford gave an opinion on whether a district court had jurisdiction over an offense against a British consul.(27) He and the district attorney thought that the offense did not fall within federal jurisdiction. But he advised the injured party to go directly before a federal grand jury: "[Ilf the grand jury will take it upon themselves to present the offence in that court, it will be the duty of the district attorney to reduce that presentment into form, and the point in controversy will thus be put in a train for judicial determination."(28) Bradford would therefore have placed initial determination regarding jurisdiction with the grand jury, not with the prosecutor.

Although Bradford saw prosecutorial discretion as limited, fifteen years later Chief Justice Marshall, sitting as a circuit judge, came to the opposite conclusion. Marshall declared that "[t]he usage of this country has been, to pass over, unnoticed, presentments on which the attorney does not think it proper to institute proceedings."(29) He went on to discuss the advantages of this custom in a system in which jurisdiction was not clearly established: "This usage is convenient, because it avoids the waste of time, which would often be consumed in the inquiry, whether the court could take jurisdiction of the offence presented. I am not disposed to disturb it, unless strong reasons should require my interposition."(30) He therefore left initial determination of a federal court's jurisdiction in a particular criminal matter not with the grand jury, but with the prosecutor, and upheld the traditional limits of the presentment power. Marshall's opinion came to be regarded as definitive. Although the grand jury could not force a prosecution, presentments remained potent; grand juries continued to make them, and they were widely publicized.

C. Slow Decline

From the mid-nineteenth century to the promulgation of the Federal Rules of Criminal Procedure in 1946, the power and independence of the federal grand jury steadily declined. Although courts periodically affirmed the grand jury's traditional powers, in practice these sank into disuse. As the number of federal prosecutors multiplied, these officials relied less on grand juries to bring charges of their own accord. As populations grew larger and more mobile, fewer jurors had intimate knowledge of a community's affairs. As the law grew more complex and investigative techniques improved, their lack of staff put grand juries at a greater disadvantage compared to prosecutors.

The grand jury endured fierce criticism in the mid-nineteenth century.(31) Predictably, early attacks on the institution came from those who, like Bentham in England, mistrusted amateurs.(32) American jurisdictions began to limit the grand jury's powers.(33) In 1859, Michigan became the first state to require that all crimes be prosecuted on the information of a district attorney.(34) After the Civil War, the movement gathered speed. Commentators castigated grand jurors for being "utterly ignorant both of law and the rules of evidence"(35) and "irresponsible."(36) Critics blasted the grand jury's "secret methods"(37) and claimed that grand jury protection, while useful under a despotism, served no purpose in a democracy.(38) Professional prosecutors, it was argued, could screen accusations better, faster, and cheaper.(39)

Mid-nineteenth-century Supreme Court Justices adopted varying attitudes toward grand juries and their presentment power. Chief Justice Taney was among the first to be dismissive of grand juries. In an 1836 charge to a grand jury in which he announced he saw little reason to bother delivering a charge at all,(40) Taney espoused a narrow view of the presentment power: "You will ... present no one, unless ... the evidence before you is sufficient, in the absence of any other proof, to justify the conviction of the party accused."(41) In 1868 Chief Justice Chase, on the other hand, emphasized the grand jury's duty "to leave no one unpresented from fear, favor, and affection."(42) A few years later Justice Field downplayed presentments, claiming that professional prosecutors had rendered them obsolete.(43)

Despite these differing beliefs, at the end of the century(44) the Supreme Court offered vague praise for the grand jury's traditional powers. In 1895, Justice Brewer in Frisbie v. United States described a system relying on an energetic grand jury: "[Iln this country the common practice is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment."(45) The prosecutor was not to dominate grand jurors. The Court stressed the historical basis for the grand jury's presentment power in Hale v. Henkel.(46) After quoting a Maryland opinion holding that "~grand juries ... may lawfully themselves, and upon their own motion, originate charges against offenders though no preliminary proceedings have been had before a magistrate, and though neither the court nor the state's attorney has laid the matter before them,"'(47) Justice Brown declared that "[t]he rulings of the inferior Federal courts are to the same effect."(48) In 1919, the Court announced that "[t]he Fifth Amendment and the statutes relative to the organization of grand juries recognize such a jury as being possessed of the same powers that pertained to its British prototype."(49) The Court held that the grand jury predated the Constitution and was preserved by that document with all its common law powers.(50)

Notwithstanding these general affirmations of grand jury powers, permanent officials continued to gain the upper hand during the early twentieth century. In 1932, two authors dismissed presentments: "[Presentments] may be regarded simply as instructions for indictments, for the framing of the latter normally follows. However, since public prosecutors are, under our practice, available to the grand jury for the drawing up of bills of indictment, the presentment form is practically obsolete."(51) These commentators ignore the possibility that the prosecutor and the grand jury might disagree. This forgetfulness of the presentment's significance foreshadows the approach taken in the Federal Rules of Criminal Procedure.

D. Modern Federal Grand Juries

For all practical purposes, the Federal Rules of Criminal Procedure have abolished the grand jury's presentment power. The grand jury secrecy provisions are so strict that a court may seal a presentment. Since the main function of a presentment, now that a comprehensive network of prosecutors exists, is to publicize wrongdoing, such judicial discretion guts the power. Confusion arises because the Rules smother the presentment power without doing so explicitly. The Rules conflict with traditional federal practice, and, because the Supreme Court has offered no guidance, lower courts have floundered in trying to discern (or make) the law.

Burying the presentment power is not unconstitutional because the accused is still protected by the indictment requirement. But loss of this power means that prosecutorial discretion goes uncriticized, and citizens are not encouraged to participate more actively in the workings of government.

1. The Federal Rules of Criminal Procedure

The Rules, which took effect in 1946, allegedly codified the existing common law practice respecting grand juries. But the Rules essentially subject the presentment power to the discretion of the court. Rule 6(e)(3), relating to grand jury secrecy, places great discretion in the hands of the judge and the government prosecutor.(52) According to the Rules, the grand jury cannot make any disclosure, including a presentment, without court permission. At common law, no such permission was necessary. Yet the advisory committee's notes to the rule declare that it "continues the traditional practice of secrecy on the part of members of the grand jury . . ."(53) Rule 7, which governs indictment and information, makes no provision for presentments. The historical notes to the rule state: "Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts."(54) As noted above, presentments had not fallen entirely out of use.(55)

When the Rules went into effect, legal scholars proclaimed that, with a few minor exceptions, they embodied the common law. Several authors stated that the secrecy rules were entirely customary: "The policy of secrecy is traditional, and violations of the required ... oath ... is both a contempt and a crime at common law."(56)

Courts were slow to apply Rule 6(e) to the presentment power. In part, this was because secrecy provisions traditionally were not applied to presentments. Also, because of congressional praise for the grand jury's potential to investigate organized crime, judges were probably somewhat reluctant to limit grand jury powers during the 1950's. But gradually, as cases arose in which grand juries made questionable presentments, federal courts responded by severely restricting the power.

2. Praise for the Grand Jury in the 1950's

During the 1950's, courts and congressional reports emphasized the grand jury's common law powers, particularly as a means of combatting organized crime. A federal district court in California declared in dicta in an organized crime case that a grand jury "may have a presentment contrary to the direct orders of a judge."(57) Supreme Court opinions also extolled traditional grand jury powers.(58) Congress was similarly impressed. The famous Kefauver Reports on organized crime laid great stress on the grand jury's crime-fighting abilities.(59) Then-Senator Nixon wanted to increase the power of federal grand juries to make them the primary weapon against organized crime. The same day the Kefauver Committee issued its final report, Nixon introduced a bill to define and enlarge federal grand jury powers."(60)

3. Problems with Grand Jury Presentments

The early 1950's brought a concern not only about organized crime, but also about un-American activities. Investigations of the former enhanced the grand jury's reputation, but investigations of the latter damaged it. During the civil rights movement in the 1960's, courts grew increasingly wary of amateur citizen bodies not under the direct control of the central government. Judges began to use Rule 6(e) to restrict the presentment power. Cases in these areas suggest some of the problems with grand jury discretion. The reforms suggested in Part III, especially those limiting presentments to government officials and contractors and providing for declaratory judgment, would resolve these difficulties.

In 1953, a federal district court in Manhattan faced a situation in which a grand jury and prosecutor had colluded to deny the accused the ability to be heard by issuing a presentment.(61) The court granted a motion to expunge a grand jury presentment accusing thirteen unnamed union leaders of perjury for having filed non-Communist affidavits required by the Taft-Hartley Act. The union leaders made the unopposed claim that the grand jury foreman, the Special Assistant to the Attorney General, and the U.S. Attorney for the district had leaked the thirteen names to the press,(62) which suggests that the grand jury and the prosecutor were actually in agreement and wanted to make public a criminal charge without the trouble of prosecuting. The court claimed that the presentment "deprived [the union leaders] of the right to defend themselves and to have their day in a Court of Justice - their absolute right had the Grand Jury returned an indictment."(63) The court stated that the grand jurors had violated Rule 6(e), which, it claimed, implemented the grand jury's traditional "ancient oath" of secrecy.(64)

In United States v. Cox,(65) the Fifth Circuit was confronted with a grand jury and a district court who wanted to force a questionable prosecution over the objections of the prosecutor. The multiplicity of opinions in that case (there were four) illustrates the muddled state of grand jury law. The case involved a petition by the Acting Attorney General to invalidate a district court order requiring a U.S. Attorney to draft and sign an indictment according to the grand jury's wishes. The plurality opinion held that the U.S. Attorney could not be required to sign an indictment and thereby initiate a prosecution.(66) The other opinions proposed a wide range of solutions,(67) but all except that of Judge Wisdom ignored the possibility of a presentment.(68) Judge Wisdom, in a thoroughly researched concurrence, noted that "[c]riminal presentment ... may be in disuse in federal courts, but it has not been read out of the Constitution."(69) He recommended a presentment in that case, stating: "This use of presentment would be in accord with the established procedure in the common law and with the original understanding of the framers."(70)

Despite Judge Wisdom's views, within a few years the D.C. Circuit eradicated presentments in Gaither v. United States.(71) As Judge Skelly Wright noted in the opinion, a presentment was the "normal procedure" followed in the District of Columbia for initiating a prosecution.(72) In Gaither, the grand jury made a presentment of the two defendants for grand larceny, without any further detail. Afterward the prosecutor drew up an indictment, alleging specific facts, and the grand jury foreman reviewed and signed the document. The court rejected the contention that the translation of the presentment into an indictment was a mere clerical procedure, since "[n]one of the essential substantive elements of an indictment [were] shown" in the presentment. It held that the indictment should have been submitted to the entire grand jury for approval.(73) However, the court acknowledged that "[t]his contention might have some merit if the jurors had voted on some set of factual charges which made up the substance of an indictment, and the prosecutor had reduced it to final form by improving the punctuation or phrasing."(74) Despite this seeming acknowledgement that a presentment might satisfy the Fifth Amendment under different circumstances, the court proceeded to deny that the procedure could ever be valid: "Indeed, it has been clear since the adoption of the Federal Rules of Criminal Procedure that a presentment is not a sufficient substitute for an indictment found by 12 grand jurors."(75)

4. Congress Considers Reform

During the 1970's, while the presentment power continued to fade,(76) Congress actively explored grand jury reform.(77) The 95th Congress considered several reform bills, including four different constitutional amendments to alter or abolish the Fifth Amendment grand jury requirement.(78) In 1983, Congress amended the rule to clarify aspects of grand jury secrecy.(79) Most significantly, the 1983 amendments provided for sealing grand jury records.(80) The court's power to seal such records became significant in the Rocky Flats case, in which Chief Judge Finesilver sealed documents the grand jury had drafted.

The cases and statutory changes discussed above illustrate the confusion surrounding modem grand jury law. The Rules proclaimed themselves to be merely a codification of the common law when in fact they eliminated a traditional grand jury power; lower court judges have split on the question of allowing presentments; the Supreme Court has supported retention of traditional grand jury powers in vague terms; and Congress has tinkered with grand jury powers, never directly addressing the presentment issue.

II. The Rocky Flats Controversy

The Rocky Flats case exemplifies the confusion in federal grand jury law. The law frustrates grand jurors, who are forbidden to exercise their traditional function of pointing out government wrongdoing. Interestingly, press accounts of the controversy never mention the word "presentment," so thoroughly has that grand jury power been forgotten. The time has come to revive it.

A. The Facts

In August 1989, Chief Judge Sherman G. Finesilver of the U.S. District Court for the District of Colorado called a special grand jury to investigate alleged environmental crimes at a Rockwell International plant in a Denver suburb. Located on land owned by DOE, the plant manufactured plutonium triggers for nuclear weapons under contract to the Department. Toward the end of the two-and-a-half-year investigation, the grand jurors became frustrated with the decision of the lead prosecutor, U.S. Attorney Michael J. Norton, not to indict individual officials of Rockwell or DOE. The grand jury rejected the proposed indictment of die corporation only. Norton then issued a criminal information and arranged a plea agreement in which Rockwell pled guilty to five felonies and five misdemeanors and paid an $18.5 million fine.(81) The grand jury's investigation was concluded as far as the prosecutor was concerned.(82)

The grand jurors were spurred to further action. With the help of a prosecutor's manual, they drafted "indictments" against five Rockwell employees and three DOE officials. They also submitted documents they called presentments" and a report criticizing prosecutors' handling of the case. Chief Judge Finesilver sealed all these documents. Still not to be outdone, the jurors leaked information to the press. Harper's Magazine and Westword, a local Denver paper, published accounts of the grand jury proceedings.(83) On October 16, 1950, Chief Judge Finesilver wrote an open letter to Norton asking the Justice Department to investigate the jurors for violations of their secrecy oath. Alarmed at the prospect of being investigated themselves, twelve jurors wrote to then-President-elect Clinton on November 18 requesting appointment of a special prosecutor to investigate the Justice Department's handling of the case.(84) The jury foreman and another juror appeared on the steps of the U.S. Courthouse in Denver to give interviews to the press, generating national publicity. Norton responded, "~Prosecutorial discretion is the obligation of the prosecutor and not the grand jury'"(85) Citing secrecy obligations, neither the jurors nor Norton went into details.

In November 1992, the grand jurors also took the unusual, if not unique, step of hiring a lawyer.(86) In December, Chief Judge Finesilver denied a motion by media companies to release the documents the grand jury had drafted.(87) In October 1993, the Justice Department finally called off its investigation into the jurors' conduct.(88)

Congress also leapt into the Rocky Flats fray with an investigation by the Investigations and Oversight Subcommittee of the House Committee on Science, Space, and Technology.(89) The resulting report recommends that Congress grant the grand jurors immunity to enable them to testify before a full committee hearing.(90) The grand jurors' lawyer tried to obtain immunity for his clients in time to allow them to testify before the Subcommittee, and the Subcommittee's suggestion shows that his efforts were not entirely fruitless.(91) Congress has never before granted immunity to grand jurors,(92) for the simple reason that grand jurors used to be automatically immune from prosecution for performing their traditional functions: issuing indictments, presentments, and reports.(93) Requiring grand jurors to testify before a congressional committee could become an unwarranted interference with the grand jury's work.(94)

B. Factors Contributing to the Grand Jury Revolt

A number of factors contributed to this particular grand jury's rebellion: the depth of the investigation and the particular constellation of personalities encouraged familiarity with the issues and reduced deference to the prosecutor; the substantive law seemed to be applied more harshly to private citizens than to the government; and the judge's charge was inspiring but his subsequent explanation of grand jury powers confusing. While this particular confluence is rare, many individual factors are bound to be repeated, and the Rocky Flats grand jury's independence will likely embolden future grand juries.(95)

As the investigation wore on, jurors' respect for the prosecutor dwindled. The jurors were impaneled to investigate one particular case, so their attention was focused and they were able to build expertise. The length of the investigation made jurors more comfortable with the evidence and increasingly less comfortable with the prosecutors who presented it. According to several jurors who spoke with the press, the grand jury began as a typical servant of the prosecution but developed more independence as the investigation proceeded.(96) Partly, the specific personalities involved encouraged a declaration of independence. Jurors complained of Norton's condescending attitude; one juror claimed he "~treated us like third-graders,"' another that he "~didn't give us credit for having any sense.'"(97) Foreman Wesley McKinley, a rancher, galvanized the jurors. He announced at one point: "~If you're going to let one government chickenshit lawyer tell you what to do, you're not part of America.'"(98)

A similar populist feeling surrounded the substantive issues of the case in jurors' minds. The grand jury was probably affected by environmentalist and anti-nuclear rhetoric in the community, but even more potent was a belief that environmental laws were being applied unequally. Jurors felt that the government was exempting itself and its contractors while others paid heavy penalties. At one session, McKinley "waved a recent issue of Reader's Digest that described how a builder and his son were sent to prison for 21 months for disturbing a single half-acre of wetland."(99)

Jurors were also emboldened by the judge's charge and frustrated by his inability to explain the law once they had acted upon that charge. Finesilver had declared: "'You must remember that you are not the prosecutor's agent. . . . You must not yield your powers nor forgo your independence of spirit . . . . You would perform a disservice if you did not indict where the evidence warranted an indictment.'"(100) In an interview, McKinley said, "~The judge told us to do as we saw right, and we believed that. The grand jury did its job. Now it's in the hands of the American people.'"(101) As the clash between jurors and prosecutor developed, the jurors turned to Chief Judge Finesilver with a written list of questions about their powers. The judge's visit to the grand jury room, however, merely confused jurors more; one said Finesilver's advice amounted to little more than "~mumbo-jumbo.'"(102)

Jurors have repeatedly expressed frustration with a judicial system that requests their services for two years yet denies them the power to make public their accusations. Seven jurors appeared on NBC'S Dateline, and Shirley Kyle's comment was representative: "~It makes me mad because if what we say or did doesn't mean anything, why did they choose to have a special grand jury?'"(103) Rocky Flats demonstrates how current secrecy rules thwart the people's ability to influence their own government and heighten the already towering level of exasperation with that government.(104)

III. A PROPOSAL FOR CLEARING UP THE MUDDLE

The confusion swirling around the Rocky Flats case could be eliminated by returning to grand juries their power to present government officials and contractors.(105) To complement this basic reform, Congress should provide for declaratory judgment at the option of the accused, for grand jury staff, and for grand jury protection from premature discharge. The refurbished presentment power would further the Framers' goal of popular participation in and control over government.

A. Restoring the Power To Present Government Officials and Contractors

Together with restoring the presentment power, the legislature should adopt safeguards to ensure that it is not used indiscriminately. A certain amount of experimentation is necessary to determine how grand juries would exercise the revitalized power. To this end, presentments should, at least initially, be limited to those of government officials and contractors.(106) As the Rocky Flats case shows, the need is most pressing in that area, and grand juries have long had a special mandate to inquire into the conduct of public officials.

1. Government Oversight as a Traditional Grand Jury Function

As noted above, grand juries traditionally have engaged in broad surveillance over government. The watchdog function, imported from England, grew stronger still in America. Justice Wilson could not emphasize the point more forcefully:

All the operations of government, and of its ministers and officers, are within the compass of [the grand jurors'] view and research. They may suggest publick improvements, and the modes of removing publick inconveniences: they may expose to publick inspection, or to publick punishment, publick bad men, and publick bad measures.(107) John Jay also emphasized the importance of federal grand jury inquiries into the conduct of public officials.(108) Although federal grand juries' power to investigate and to criticize the conduct of public officials is not as great as that of many state grand juries,(109) it is traditional, still useful, and should be preserved in the presentment power.

2. Political Impartiality

Grand jurors, who are not themselves permanent officials, are more likely to be free from bias than are prosecutors in cases involving officeholders.(110) Judges, in particular, have long emphasized the impartiality of grand juries compared with other investigators when public officials come under suspicion. Experience on the bench no doubt makes judges acutely aware of the dangers of prosecutorial discretion in such circumstances. Justice Wilson early recognized the benefits of grand jury impartiality: In the annals of the world, there cannot be found an institution so well fitted for avoiding abuses, which might otherwise arise from malice, from rigour, from negligence, or from partiality, in the prosecution of crimes"(111) The grand jury's temporary membership helps to put it, in the words of Massachusetts Chief Justice Lemuel Shaw, beyond the reach of fear or favor, or of being overawed by power or seduced by persuasion."(112) In his dissenting opinion in Hurtado v. California,(113) Justice Harlan noted that the grand jury, being free from control by the electorate and from public clamor, was ideally suited to impartial and nonmalicious consideration of charges.(114) In order to maintain public confidence in the criminal law system, the grand jury should have the power to present public officials and contractors.

This approach would solve some of the problems of possible partiality on the part of the prosecutor in the Rocky Flats case. Grand jurors, unlike a U.S. Attorney, can avoid even the appearance of impropriety when a U.S. agency or contractor is under investigation. The people should not rely solely on the Executive to police itself in such cases. Nor is the legislature entirely successful at performing this function; investigative subcommittees have obvious political biases,(115) magnified by the often public nature of their hearings, while the independent counsel law has provoked criticism on both political and constitutional grounds.(116) Grand juries have significant advantages over other methods of oversight.

3. Executive Initiation of Prosecution

Grand jury presentments would not interfere with the long-established principle that prosecution in federal courts is uniquely dominated by the Executive.(117) Presentments cannot initiate a prosecution without the consent of the Executive.(118)

4. School for Civic Duty

Several authors have recently noted an earlier emphasis on jury service as a means of educating the people in the ways of democratic government.(119) Tocqueville believed that the jury "should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law."(120) Francis Lieber, a student of Story's and an influential commentator on the Constitution,(121) noted that along with this increased knowledge of the law came increased respect for and attachment to the government. Jury service "binds the citizen with increased public spirit to the government of his commonwealth, and gives him a constant and renewed share in one of the highest public affairs, the application of the abstract law to the reality of life - the administration of justice."(122) Indeed, the Rocky Flats jurors did learn a great deal about the legal system and their duties as citizens in the course of their long service.(123) Whether they feel more attached to the government is another matter.

These jurors are disturbed by what they perceive as hypocrisy in a judicial system that claims to value their knowledge and opinions while denying them the opportunity to make their determinations known when a serious conflict arises. Jurors learn not respect for, but frustration with, the system if they feel their efforts, particularly after a long investigation, are considered unworthy of official recognition. They tend to become cynical about the process of government and either refuse to participate seriously or, like the Rocky Flats grand jury, relieve their feelings through leaks to the press.[124] Legitimating presentments would indicate to jurors that the government takes their opinions seriously and values their new-found knowledge. The grand jury could then once again function as Justice Wilson described the institution: "a great channel of communication, between those who make and administer the laws, and those for whom the laws are made and administered."(125)

B. Providing for Declaratory Judgment

The greatest problem with presentments is the lack of opportunity for the accused to answer in a judicial forum. This deficiency has disturbed judges and contributed to judicial disapproval of presentments. One of the harsher descriptions follows:

A presentment is a foul blow. It wins the importance of a judicial document; yet lacks its principal attributes - the right to answer and to appeal. It accuses, but furnishes no forum for a denial. No one knows upon what evidence the findings are based. An indictment may be challenged, even defeated. The presentment is immune. It is like the "hit and run" motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.(126)

Such dire predictions nearly became reality in Application of United Electrical, Radio & Machine Workers.(127) As described above, the grand jury and prosecutor essentially colluded to prevent union leaders from answering charges made in a presentment.(128) In United States v. Cox, the combination shifted: the judge and the jury favored accusation, while the prosecutor protested. In his concurrence, Judge Wisdom warned of the dangers of allowing charges to hang over the heads of the accused for an indefinite period.(129) The protection of the accused before trial is frequently a reason given for grand jury secrecy laws.(130)

To prevent such injustices and yet allow the grand jury the power of presentment, Congress should turn to a proposed reform from the field of libel law and provide for declaratory judgment.(131) The accused could initiate an action for declaratory judgment to determine whether the grand jury's presentment met a certain standard of proof. Two alternative models for this proceeding follow: one focuses on the good faith of the grand jury and prosecutor, the other on the substantive accuracy of the accusation.

The first model is less elaborate and resembles review of a warrant. The standard would be probable cause,(132) and the accused would bear the burden of persuasion. The record used by the fact-finder would be the grand jury record. Recall that a court reporter must be present at all grand jury sessions except deliberations and votes.(133) Opportunities to supplement this record should be few.(134) This model would avoid the length and complexity of trial-like procedures.

Alternatively, the action could use procedures more like those of an ordinary civil trial. The second model would use a standard of preponderance of the evidence. The grand jury presentment and record would constitute a prima facie case supporting the accusation. The accused could then introduce evidence tending to show lack of guilt, and opposing counsel could introduce further evidence. This model, although more complicated than the first, would allow the accused a full opportunity to be heard.(135)

Under either model, the action for declaratory judgment should carry a statute of limitations, preferably of about six months. If the presentment was not challenged or if it survived challenge, the government could prosecute the case within one year after the presentment was made.(136) To do so, the prosecutor would simply sign the presentment, thus transforming it into an indictment, and the usual procedures would follow. If the presentment did not survive challenge, the prosecutor would need to seek a new grand jury accusation before prosecuting.

C. Allowing the Grand Jury Appropriate Staff

An important reason why the grand jury has lost ground compared to judges, prosecutors, and legislators is its lack of staff. Counsel is particularly important. Lay jurors encounter many problems requiring legal expertise, and if they are to become more independent they must have a source of legal advice other than the prosecutor or the judge. The declaratory judgment procedure assumes that the presentment is already in proper legal form, since making changes raises the difficult question, discussed in Gaither, of what changes are substantial enough to require resubmission to the grand jury for its approval. Providing the grand jury with counsel would enable it to make presentments that can serve, without alteration, as formal charging documents.

Several authors have noted the need for special staff to serve the grand jury.(137) Hawaii's constitution even provides for "independent counsel appointed ... to advise the members of the grand jury regarding matters brought before it."(138) Nikon recognized the importance of professional assistance for the grand jury and provided for such staff in his bill.(139) A scheme similar to his would be appropriate: at the request of twelve or more jurors, the judge who impaneled the jury would appoint counsel and special investigators, not exceeding a certain number. Expenditures would be controlled by fixing daily rates of compensation by statute. In addition, the court should automatically provide counsel when the grand jury wishes to make a presentment, to ensure that it is drafted correctly (although in such cases the jurors would likely make the request anyway).(140)

D. Limiting Judicial Discretion To Discharge Grand Juries

Another difficulty faced by a grand jury attempting to issue a presentment is the great judicial discretion concerning discharge. Rule 6 appears to grant judges absolute discretion over discharge,(141) but that discretion is modified by a handful of decisions holding that a district court should not discharge a grand jury without cause in order to prevent an indictment.(142)

Although Chief Judge Finesilver did not immediately discharge the grand jury and allowed it to continue to meet after the prosecutor had settled the case, other judges might not be so respectful of the grand jury. The federal grand jury needs greater protection from premature discharge if it is to fulfill its function of ferreting out government wrongdoing. Rule 6(g) should be amended to prohibit a court from discharging a grand jury if twelve jurors give notice that they wish to continue an investigation, subject to the statutory limitation of eighteen months.(143)

CONCLUSION

The grand jury still has the potential to become, as the Framers envisioned, a "great channel of communication" between rulers and ruled; indeed, it helps to break down the distinction between the two. But to realize this vision, Congress and the courts must go beyond ill-considered and piecemeal reform. Congress, in particular, should not become so distracted by the substantive issue of environmental crimes and by its own investigations that it forgets who brought Rocky Flats to its attention in the first place. A statute is needed that precisely defines the grand jury presentment power as against indictments and reports. Secure in their powers and in the knowledge that their opinions would be respected, grand jurors could once again directly voice the will of the people.
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Author:Lettow, Renee B.
Publication:Yale Law Journal
Date:Mar 1, 1994
Words:7422
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