NOTES
Committee on Judiciary, “Reform of the Grand Jury System,” Sept. 18, 1976 (94 th Cong.), at 272 (statement of Charles F.C. Ruff).
1. David L. Fine, Comment, Federal Grand Jury Investigation of Political Dissidents , 7 Harv. C.R.-C.L. L. Rev. 432, 498 (1972). 2. William J. Campbell, Eliminate the Grand Jury , 64 J. Crim. L. & Criminology 174, 180 (1973). Our proposals are obviously more modest. 3. Arnold I. Burns, Warren L. Dennis and Amybeth Garcia-Bokor, Curbing Prosecutorial Excess: A Job for the Courts and Congress , The Champion, July 1998, at 12-13. 4. United States v. Van Engel , 15 F. 3d 623, 626 (7th Cir. 1993). 5. United States v. Kojayan , 8 F.3d 1315, 1320 (9th Cir. 1993). Compare Paul Craig Roberts, Ambition Above Justice , W ASH . T IMES , Mar. 26, 1998, at A18 (“A former assistant U.S. attorney described to me the extraordinary decline in prosecutorial ethics he has witnessed during his career. He laid blame on . . . the overnight expansion of the number of assistant U.S. attorneys from 1200 to more than 7000. There were not enough seasoned people to fill the posts, and the influx over- whelmed the ability of the Justice Department to inculcate a respect for justice and the majesty of law as opposed to a win-at-all-costs attitude favored by the younger law school graduates.”). 6. Subcommittee on Government Information, Justice, and Agriculture, U.S. House Committee on Government Operations, “Federal Prosecutorial Authority in a Changing Legal Environment: More Attention Required,” H.R. Rep. 986, (1990) (101 st Cong.). 7. Pub. L. No. 105-119 (Nov. 26, 1997) (now at 18 U.S.C. 3006A note) (“Hyde Amendment” statute for recoupment of fees and costs associated with being prosecuted frivolously, vexatiously, or in bad faith); H.R. Conf. Rep. No. 105-405, at 193-94 (1998) (“a grand jury finding of probable cause to support an indictment does not preclude a judge from finding that the government’s position was vexatious, frivolous, or in bad faith.”). See Henry J. Hyde, “Trust a 340-84 Vote and 17 Years of Success,” Oct. 27, 1997 (“Dear Colleague” regarding his amendment for fee and cost recoupment for the wrongfully pros- ecuted, debunking DOJ’s claim that Congress need not be concerned with wrongful prosecutions because prosecutors must go to a grand jury before they can indict a defendant .) Reported decisions in just one year’s time under the Hyde Amendment, regarding successful motions for fee and cost recoupment, include: U.S. v. Holland , 1999 U.S. Dist. Lexis 1147 (E.D. Va. 1998); U.S. v. Ranger Electronic Communications Inc ., 22 F. Supp.2d 667 (W.D. Mich.1998); United States v. Gardner , 23 F. Supp.2d 1283 (N.D. Okla. 1998); and U.S. v. Yee Chan (Mid Pac Electric Co.), 22 F. Supp.2d 1123 (D. Hawaii 1998). See also Pub. L. No. 105-277, Sec. 801 (Ethical Standards for Prosecutors Act, supported by U.S. House Judiciary Committee Chairman Hyde, effective April 19, 1999). 8. U.S. v. Holland , 1999 U.S. Dist. Lexis 1147 (E.D. Va. 1998). 9. Terry Carter, The Zealots and the Senator ,A.B.A.J., Oct. 1998, at 60. 10. Id . at 67. 11. Id . 12. Ann Davis, Life in a Federal Prosecutor’s Cross Hairs , Wall Street Journal, Mar. 17, 1998, at B1, B17. 13. Id ., at B17 (emphasis added here). 14. Id . 15. Cleared of Army Fraud,Woman Loses Effort to Recover Legal
24. . 18 U.S.C. 2515. 25. 414 U.S. at 351. 26. See supra notes 4-5, and accompanying text.
27. See e.g., Subcommittee on Constitutional Rights, U.S. Senate Committee on Judiciary, “Reform of the Grand Jury System,” Sept. 28, 1976 (94 th Cong.); Subcommittee on Immigration, Citizenship, and International Law, U.S. House of Representatives Committee on the Judiciary, “Grand Jury reform,” Mar. 17,Apr. 27, June 1 and 29, 1997 (95 th Cong.). Diverse supporters of reforms such as those we propose included: General Motors Corporation; Litton Industries Corporation; Bethlehem Steel Corporation; Watergate Prosecutor (now White House Counsel) Charles F. Ruff; the Alliance for Preservation of Religious Liberty; the National Council of Churches (a cooperative agency of 30 national religious bodies of Protestant,Anglican and Eastern Orthodox traditions in the country, aggregating over 40 mil- lion members); the National Council of Churches of Christ; the Reporter’s Committee for Freedom of the Press; the Newspaper Guild (AFL-CIO); International Longshoresmen’s & Warehousemen’s Union; Richard E. Gerstein, State’s Attorney, Metropolitan Dade County (Florida) — the chair of the ABA Criminal Justice Section’s Committee on the Grand Jury, and a former president of the National District Attorneys Association. Editorial endorsements of these type proposals spanned the nation. See, e.g., Denver Post, Grand Jury Reform Merits Public Support , June 23, 1976; Louisville Times, Congress Can Check Grand Jury Abuses , Nov. 15, 1976; Austin American-Statesman, Grand Jury Reform Needed , July 30, 1977; Charlotte Observer, Leaky Shield — Grand Juries Need Repair , July 11, 1977; Salt Lake City Tribune, Grand Jury System Would Gain From ABA Reform Package , Aug. 12, 1977. See also Under Indictment — GM, Other Unlikely Critics Accuse Grand Juries of Abusing Rights They Are Supposed to Protect ,Wall Street Journal , June 23, 1977; Corporate Complaints of Grand Jury Abuses ,Wash. Post, July 6, 1977. 28. See, e.g. , Win at All Costs: Government Misconduct in the Name of Expedient Justice , Pittsburgh Post- Gazette, Nov.-Dec. 1998 (10-part series from several years’comprehensive investigation, by award-winning investigative reporter, into prosecutorial misconduct including abuses of the grand jury); Dateline NBC, Mar. 26, 1999. See also Trial and Error : How Prosecutors Sacrifice Justice to Win ,” ChicagoTribune, Jan. 1999 (5-part series from similarly comprehen- sive investigation into sample of murder cases alone, since 1963, con- taminated by prosecutorial misconduct). 29. Subcommittee on Constitutional Rights, U.S. Senate Committee on Judiciary, “Reform of the Grand Jury System,” Sept. 18, 1976 (94 th Cong.), at 272 (statement of Charles F.C. Ruff) (emphasis added).
30. 504 U.S. 36 (1992). 31. 414 U.S. 613 (1974).
32. . 18 U.S.C. 2515. 33. 414 U.S. at 351.
34. N.Y. Crim. Pro. L. 190.50 (5)(a): “When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor’s information in the matter, he serves upon the district attorney of the county a written notice mak- ing such request stating an address to which communications may be sent. . . .”. 35. 18 USC 1504 may need to be revised to reflect that this prof- fer of information and evidence is not improper, let alone illegal. The broadly written Section 1504 currently makes it a misdemeanor, with a maximum punishment of six months incarceration, to provide a written communication to a grand juror. 36. See, e.g., In re Sealed Motion , 880 F.2nd 1367 (D.C. Cir. 1989); In re Subpoena of Heimerle , 788 F. Supp. 700 (E.D.N.Y. 1992). 37. John R. Wing and Eli Gottresdiene, Grand Jury Investigations , Business Crimes Journal, May 1988. 38. In re Minkoff , 349 F. Supp. 154, 158 (D.R.I. 1972). 39. 514 F.2d 794 (5th Cir. 1975). 40. . Id. at 800. 41. Id . at 803. 42. ABA Standards for Criminal Justice, Prosecution Function, Standard 3-3.5(c) (3d edition). N
Fees ,Wall Street Journal, Mar. 26, 1998, at B13. 16. Gentile v. Nevada , 501 U.S. 1030 (1991).
17. U.S. Department of Justice, Bureau of Justice Statistics, 1987 Sourcebook of Criminal Justice Statistics, table 5.22; 1988 Sourcebook, table 5.28; U.S.S.C. Annual Report 1998, table 10 at 20. 18. 414 U.S. at 343. 19. See, e.g ., Thomas P. Sullivan and Robert D. Nachman, If It Ain’t Broke, Don’t Fix It:Why the Grand Jury’s Accusatory Function Should Not Be Changed , 75 J. Crim. L. & Criminology 1047, 1062- 1063 (1984). 20. See, e.g. , Jeffrey Bayles, Grand Jury Reform: The Colorado Experience ,A.B.A.J., May 1981, at 571. 21. See, e.g. , Sullivan & Nachman, supra note 33, at 1067. See also e.g. , Fla. Crim. Code 905.17 (2)(“The witness may be represent- ed before the grand jury by one attorney. This provision is permissive only and does not create a right to counsel for the grand jury witness. The attorney for the witness shall not be permitted to address the grand jurors, raise objections, make arguments, or otherwise disrupt proceedings before the grand jury. The attorney for the witness shall be permitted to advise and counsel the witness . . . .”). 22. Jay Fenster, Note, The Presence of Counsel in the Grand Jury Room, 47 Fordham L. Rev. 1138, 1152-54 (1979). 23. Subcommittee on Constitutional Rights, U.S. Senate
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