Criminal Justice

The Grand Jury Farce


"Ken" at Popehat, himself a former Assistant U.S. Attorney, reacts to the government's silencing of pain patient advocate Siobhan Reynolds:

Let me pause and offer you a dark confession. I miss the grand jury. When I want documents or evidence now as a criminal defense attorney, I have to ask the government for it, wait for them to laugh and refuse, and then run to court and try to convince a judge to order the government to abide by its obligations. As a civil litigant, I have to write long, complicated demands for documents and information, wait a month for a response, get a response refusing most of what I asked for, engage in a letter-writing campaign, and eventually go to court seeking an order making the other side give me the documents, often months later.

Oh, to use the grand jury again! As a federal prosecutor, I could just issue grand jury subpoenas. I could refuse extensions at my whim. I could ask for whatever the hell I wanted based on the most remote suspicion that it might be relevant to a federal investigation. I could demand compliance with confidence, knowing that it is extraordinarily rare for a federal court to grant a target's motion to quash or limit a subpoena. And I could do all of this under the ridiculous fiction that I was acting on behalf of a grand jury so long as, occasionally, I stepped into the grand jury room and had a federal agent testify briefly that "Hey, we've got an investigation going into [vague subject], we issued subpoenas in your name, we got these documents, the investigation continues." 99% of the time, the grand jurors wouldn't look up from their newspapers, hoping they'd get let out early that day. Were the grand jurors a check on government abuse of the subpoena power? Don't make me laugh until I throw up.

And so yet another institution designed to protect us from government abuse effectively becomes a tool for government abuse.

Incidentally, Reynolds' organization, the Pain Relief Network, is no more. From the website:

The Members of the Board of Trustees and I have decided to shut down PRN as an activist organization because pressure from the US Department of Justice has made it impossible for us to function. I have fought back against the attack on me and PRN but have received no redress in the federal courts; so, the board and I have concluded that we simply cannot continue…

People in pain are still being abused, neglected, and, left to die by the entire system. Physicians brave enough to treat chronic pain continue to be intimidated and prosecuted. It breaks my heart that we have to stop, but there is simply no way forward for PRN.

NEXT: New York Times Editorial Board Concerned That Some People Might View Federal Government as "An Intrusive Parent"

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  1. Happy fucking New Year!

  2. Voltairine De Cleyre:

    Instruments which are set up to safeguard rights become the very whip with which the free are struck.

  3. Now that is a ball kick to end the year on.

    [crawls away from computer in search of a stiff drink]

  4. I don’t expect fair any more, but it would be nice if we had a justice system that wasn’t just TOTALLY FUCKING RETARDED.

  5. I don’t know. I like Rick Hillier’s idea of bringing back Grand Juries to Canada.

  6. Can someone explain how a grand jury subpeona works. Surely the jury can’t just allow the prosecutor to do whatever he wants if they agree with him. What happened to the procedural rules?

    1. Lost_In-Translation, it works like this:

      A federal agent, or an Assistant United States Attorney, decides they want to get some documents. They go to a paralegal or secretary and ask them to draft a grand jury subpoena. If it’s an agent, they ask a prosecutor to sign it; if it’s a prosecutor, she signs it herself. Then the agent serves it.

      Theoretically, the prosecutor is supposed to keep a sitting grand jury informed about subpoenas issued in their name, and about the fact that documents have been received in response. DoJ has some guidelines, which are extremely forgiving. So long as the prosecutor occasionally brings the agent into the grand jury and has them say “hey, we’re investigating [whatever], and we subpoenaed documents, and we got some, and this agent will keep keeping custody of them”, they are complying with requirements.

      In theory, the grand jury is a check on the use of subpoenas under their authority. In reality, that’s laughable. They receive no legal training that would allow them to evaluate whether the prosecutor’s use of the subpoena is appropriate. Usually grand jurors only meet once a week, or even less often, and they are not encouraged to keep track of investigations over the months, and not provided with any mechanism to do so. They’re rarely inclined to do so.

      Federal prosecutors use grand juries in two ways: as a rubber-stamp and as a box. The rubber-stamp works like this: you walk in with a draft indictment and an agent, swear in the agent, ask the agent leading questions until you establish the elements of the crime through hearsay, tell the grand jurors the elements, read them the indictment, and leave the room while they deliberate. Stand clear of the door; it usually slams open with a true bill within 30 seconds. I indicted hundreds of cases; I never had a no-bill, and I saw deliberation lasting more than 2 minutes in perhaps 5% of cases.

      The other grand jury use is as a box. It’s a box you put evidence in to preserve it. You issue subpoenas, get documents, and put them in the box (though not actually in the grand jury room). You decide you want to compel someone to talk to you, or preserve their testimony, so you subpoena them to testify, shove them in front of whatever grand jury is meeting that day (usually giving the grand jury no context on what the investigation is about; they sit there gaping and wondering what is going on) and, bang, you’ve preserved their testimony. (When you want to indict based on that testimony later, you might go to the same grand jury, or you might hand a different grand jury the transcript of that first appearance on the fiction that they’ll read it before deciding whether to indict, or you might use your agent to summarize the testimony).

  7. Ow, ow, ow, ow, ow, ow…

    I wasn’t going to read that, but I did. It’s like a SugarFree link – I should know better, but….

    Happy New Year, anyway, Radley! And keep up the good work!

    I’m going to start drinking a bit early – maybe my nuts won’t hurt so much. Ow, ow, ow, ow, ow, ow….

  8. Our leaders have an incentive to alarm us about the bad guys, while promising to protect us. So we vote for them and get ‘protections’ like the federal grand jury process, the Controlled Substances Act, the PATRIOT Act and many other federal programs too numerous to mention. So we not only allow the abuse, we pay the abuser.

    1. “.. we not only allow the abuse, we pay the abuser.”

      + 1

  9. Dang. I used to comment there and occasionally they would pick up one of my blog posts.

    I have corresponded with Siobhan Reynolds.


    And now Popehat is covering Reason.…

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