When safeguards fail
Grand juries make questionable calls when prosecutors hide the evidence
December 6, 1998
The 54-page indictment against William B. Moore Jr. was the result of a "paintstakingly thorough" 3 1/2-year investigation, federal prosecutors said.
The case was backed up by more than 50,000 pages of documents, and the government called 84 witnesses during the six-week trial that started in October 1989.
Moore, the millionaire chief executive officer of Recognition Equipment Inc. of Dallas, was accused of participating in a scheme to bribe officials of the U.S. Postal Service.
Repeatedly, though, U.S. District Judge George Revercomb of Washington, D.C., asked Assistant U.S. Attorney James B. Valder when he would link Moore to the crime.
Outside of a few inferences, Valder never did.
His case rested upon the premise that Moore and company Vice President Robert Reedy cleverly insulated themselves from other perpetrators of a contract procurement scam by maintaining "plausible deniability."
Defense attorneys had a different explanation. They said Valder had misled and cajoled a grand jury by distorting facts, threatening witnesses and withholding exculpatory information in order to force an indictment, even though no evidence connecting Moore to the crime existed.
The judge never ruled on the defense attorneys’ allegations of misconduct. Instead, he dismissed, for lack of evidence, all charges against Moore, his company and his associate — before the defense even presented its case.
Moore had spent almost four years and $9 million defending himself. A hostile takeover had destroyed his company. He’d suffered a heart attack. And he was angry.
He wanted to sue the government for its obvious manipulation of a grand jury to create a crime that wasn’t there.
Attorneys warned him that it would probably be fruitless.
So far, they’ve been right.
As the Post-Gazette’s two-year investigation found, the American justice system has made it simple for federal prosecutors to use a grand jury to win an indictment against almost anyone. But it has made it nearly impossible to punish them when they abuse that right.
"[The federal grand jury] is no longer a protection of the person who is suspected of crime, it is a vicious tool," said Arnold I. Burns, who was deputy attorney general for President Reagan and is a member of an attorneys’ task force seeking changes in the grand jury system.
"The grand jury process today is as far afield from what it was intended to be as it could possibly be."
Change in role
The framers of the Constitution included grand juries as a safeguard — providing that no person should stand trial for "a capital or otherwise infamous crime" without grand jurors first determining that sufficient evidence existed to press charges.
A federal grand jury usually has 23 members and a prosecutor needs the approval of only a simple majority — 12 votes — to win an indictment charging a crime.
Federal prosecutors have tremendous power when they convene a grand jury. They decide whom to seek indictments against and what charge that suspect should face. They also determine what evidence grand jurors see, what witnesses they hear and whether to grant leniency to witnesses who might testify against a defendant.
They can frame arguments that favor their version of events, emphasize the testimony of one witness, and ignore the testimony of another.
Evidence presented before a grand jury may be so flimsy that it would not be admissable at a trial. Grand jurors may hear rumors from witnesses or even use their own knowlege of an alleged crime in determining whether to indict. A defendant has no right to be present or even have an attorney present to listen to the proceedings or rebut false accusations.
Defense attorneys complain that grand juries can easily be manipulated by an unscrupulous prosecutor and that the problem has become worse because there is little oversight of the proceedings by federal judges. In addition, the Supreme Court has expanded grand jury powers.
For instance, Moore said Valder not only deceived the grand jury about the facts of the case, but that he also possessed evidence that strongly suggested Moore was innocent yet withheld it. Moore said Valder’s actions violated the Justice Department’s rules requiring such disclosures.
But in 1992, the U.S. Supreme Court ruled in a 5-4 decision that prosecutors have no legal obligation to provide "substantial exculpatory evidence" to a grand jury — a standard requirement in a trial.
Justice Antonin Scalia wrote in the case — U.S. v. Williams — that it is "sufficient for the grand jury to hear only the prosecutor’s side."
Justice John Paul Stevens issued a vitriolic dissent, saying the majority’s finding "is inconsistent with the administration of justice . . . and should be redressed in appropriate cases by the dismissal of indictments obtained by improper methods."
"Every so often," he said, "you wind up with (a federal prosecutor) who is some sort of a crazy zealot, no background, no experience, no frame of reference, uncontrolled, unfettered, very dangerous."
He said the grand jury process should be reformed so prosecutors have an obligation to present exculpatory material. He also believes suspected felons and their lawyers should have an opportunity to be heard, and that judges should be more active in supervising grand jury proceedings.
"I have the greatest respect in the world for Justice Scalia," Burns said in a recent interview. "I consider him a friend. But . . . he does not have a full appreciation that if you are indicted, you are ruined, even if you are acquitted."
Burns mentioned the case of former U.S. Department of Labor Secretary Raymond Donovan, who served under Reagan and was indicted by a grand jury on charges of public corruption. He was acquitted after a prolonged trial.
"Like Donovan said, ‘I was acquitted, now how do I get my reputation back,’ " Burns said.