Amicus Curiae Brief — Bank of Nova Scotia v. United States

Nos. 87-578, 87-602 Supreme Court, US,

“ib 1 D

IN THI FEB 25 set

Supreme Court of the United Prater & sreven, we,

OCTOBER TERM, 1987

a >

THE BANK OF NOVA SCOTIA,

Petitioner,

— \ co

UNITED STATES OF AMERICA,

Respondent.

—__- —— --____ ~~

WILLIAM A. KILPATRICK, ef a/.,

Petitioners.

UNITED STATES OF AMERICA,

Respondent.

ON WRITS OF CERTIORARI 10 THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CiRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION FOUNDATION AND THE AMERI-

CAN CIVIL LIBERTIES UNION FOUNDATION OF

COLORADO IN SUPPORT OF PETITIONERS

JOHN A. POWEFLI

(Counsel of Record)

HELEN HERSHKOFI

STEVEN R. SHAPIRO

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

212) 944- )

RICHARD F. ZIEGLER (212) 944-9806

MARTHA F. Davis DAVID H. MILLER

CLEARY, GOTTLIEB, Americen Civil Liberties Union

STEEN & HAMILTON Foundation of Colorado

One State Street Plaza 815 East 22 Avenue

New York, New York 10004 Denver, Colorado 80205

(212) 344-0600 (303) 861-2258

QUESTION PRESENTED

Whether a federal district court may

exercise its supervisory power to dismiss

an indictment before trial, absent proof of

actual prejudice to the defendant, where

prosecutorial misconduct of the grand jury

process is so repeated and egregious as to

undermine the integrity of the criminal

justice system.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......... iii

INTEREST OF AMICI

AND SUMMARY OF ARGUMENT ....... 1

Guen ctetlthlckthl tlc lt te ehh] |S 5

I. THE DISTRICT COURTS MUST BE

AUTHORIZED TO DISMISS AN INDICTMENT

BEFORE TRIAL WHERE WILLFUL AND

REPEATED PROSECUTORIAL MISCONDUCT IN

THE GRAND JURY PROCESS UNDERMINES

THE INTEGRITY OF THE CRIMINAL

JUSTICE SYSTEM . . «© ee secre eee §

A. The Grand Jury is Essential to

the of the Criminal Justice

SyGtem «ce se see eceweeees ese §

B. Supervisory Authority Over

the Grand Jury Process Allows

the Federal Courts to Ensure

and Enhance The Integrity of

the Criminal Justice System... 9

Cc. Federal District Courts Must be

Authorized to Dismiss an Indict-

ment Before Trial, Absent Proof

of Actual Prejudice, Where Prose-

cutorial Misconduct Impairs The

Integrity Of The Criminal Justice

SyYGCGM «- ses se ec eo eee ewe ewe be

Il.

CONCLUSION . .

THE PRACTICAL IMPOSSIBILITY OF

PROVING ACTUAL PREJUDICE WOULD

ELIMINATE DETERRENCE OF

PROSECUTORIAL MISCONDUCT IN MANY

Wee a GS os 6 6 wt ct we ae - 23

A. Prosecutorial Misconduct Can

Dramatically Impair Public

Confidence Even if a Particular

Defendant Does Not or Cannot

Prove Actual Prejudice .... 24

B. Actual Prejudice Is

Difficult If Not Impossible

nS be ee eae a 32

. . . 36

- ii -

Ball ited ’

329 U.S. 187 (1946) .....

Be Vv j tates,

295 U.S. 78 (1935) ..

Blair v ited ates,

250 U.S. 273 (1919) : « & %

Branzburg v. Hayes,

408 U.S. 665 (1972) .....

Communist Party v. Subversive

Activities Control Board,

334 UeBe 245 (3956) «. « «© ©

Cos Vv i .

350 U.S. 359 (1956) “a oe te

In re Murchison,

349 U.S. 133 (1955) .....

In re November 1979 Grand Jury,

616 F.2d 1021 (7th Cir. 1980)

V ’

476 U.S. 162 (1986) .....

Mars Vv. j s,

DOO Bue SOO CEOUES tt tl

McNabb v. United States,

318 U.S. 332 (1943) ae Tae

- iii -

27

30

10

12

20

19

34

12

Olmstead v. United States,

oe © St ee ” | ee

Peters v. Kiff,

407 U.S. 493 (1972) Bo ies Ge i ee ae We

Pittsburgh Plate Glass

v. United States,

360 U.S. 395 (1959) ......,

Smith v. Phillips,

455 U.S. 209 (1982) a a a oe

Taylor v. Louisiana,

379 U.S. 466 (1965) :< » ie uw Oo

Tumey v. Ohio,

273 U.S. 510 (1927) “—: oo T+ So oe

United States v. Mudarris,

695 F.2d 1182 (9th Cir.),

cert. denied, 461 U.S. 932 (1983)

Vv. ws,

444 F.Supp. 1238 (E.D.Mich. 1978)

Unit Vv. qd -

476 F.Supp. 939 (N.D.I1l. 1979) .

Uni Vv.

444 U.8. 338 (3974) . . ww ce

Unit S v. Cro .

568 F.2d 1049 (3d Cir. 1977) .

Unit Vv ’

330 F.2d 316 (2d Cir. 1964) ...,

- iv-

12,

15,

12

34

33

26

12

23

17

14

16

27

United States v. DeFabritus,

605 F.Supp. 1538 (S.D.N.Y. 1985) .

nited stat iain

213 F.Supp. 232 (N.D.Ill. 1963) .

.

-

‘

545 F.2d 548 (6th Cir. 1976) ...

ni V. ’

471 F.2d 1132 (2d Cir. 1972) ...

United States v. Gallo,

394 F.Supp. 310 (D.Conn. 1975)...

v ‘

470 F.Supp. 1336 (N.D.Ill. 1979) .

v. Hinton,

543 F.2d 1002 (2d Cir. 1976),

cert. denied, 429 U.S. 1066 (1977)

Uni v. Ho .

712 F.2d 757 (2d Cir. 1983) “te

United States v. Kazonis,

391 F.Supp. 804 (D. Mass. 1975),

aff'd, 530 F.2d 962 (ist Cir.),

cert. denied, 429 U.S. 826 (1976)

United States v. Mechanik,

8 * S £. Serpe

United States v. Omni

International Corp.

‘

634 F.Supp. 1414 (D.Md. 1986)

15,

14

17

28

21

22

20

33

25

14

17

Uni Vv. igna ,

582 F.Supp. 251 (D.Col. 1984)

Uni Vv ,

708 F.2d 523 (10th Cir. 1983) » «

pnAted States v.—Procter & Gamble,

356 U.S. 677 (1958) ..

Unit Vv. ma ,

607 F.2d 877 (9th Cir. 1979)

Uni v. Se

Roebuck & Co.,

579 F.Supp. 1055 (C.D.Cal. 1984) .

U it Vv. s

Engineering, Inc.,

Gip Wee Gee Cmeeee 5 tt tee

Uni ted S tates v. Serubo Oo,

604 F.2d 807 (3d Cir. 1979) e e« 10,

V Vv 9

474 U.S. 254 (1986) oe ee Oe

Wood v. Georgia,

ove weme Gee teeeee «© ec se eo se ee

Vv j :

107 S.Ct. 2124 (1987) ® » Be See

Rules

Federal Rules of Criminal Procedure

ENE eee eee

ee

34

22

35

15

34

15, 18

18

Legislative History

Grand Jury Disclosure: Hearings

on S.1676 before the Senate

Committee on the Judiciary,

99th Cong. (Nov. 19, 1985)...

Grand Jury Reform: Hearings

before the Subcommittee on

Immigration, Citizenship and

International Law," of the House

of Representatives Committee on

the Judiciary, 95th Cong.

(Mar. 17 - June 29, 1977) ° e

ot u ities

M. Frankel & G. Naftalis,

The Grand Jury 120 (1977) ms

Note, Double Jeopardy,

Due Process, and the Breach

f Plea Agreements,

87 Colum.L.Rev. 142 (1987)

Note, The Exercise of

iss

a Grand Jury Indictment,

45 Ohio St. L.J. 1077 (1984) .

Note, The Supervisory Power

of the Federal Courts,

76 Harv.L.Rev. 1656 (1963) .

- vii -

25

25

26

26

—_

INTEREST OF AMICI

AND SUMMARY OF ARGUMENT+/

The American Civil Liberties Union

Foundation (ACLU) is a nationwide, non-

partisan organization of more than 250,000

persons dedicated to protecting and

preserving the civil rights and civil

liberties guaranteed by law. The ACLU

Foundation of Colorado is one of its state

affiliates.

Since its creation 60 years ago, the

ACLU has worked to ensure the integrity and

independence of the criminal justice

system. Within that system, "[t]jhe grand

jury has always occupied a high place as an

instrument of justice ... -= so much so

that it is enshrined in the Constitution."

1/ letters of consent to the filing of this brief

are being filed with the Clerk of the Court

pursuant to Rule 36.2 of the Rules of this Court.

United States v. Sells Engineering, Inc.,

463 U.S. 418, 423 (1983). This Court has

"consistently stood ready to defend [the

grand jury] against unwarranted intrusion,"

id. at 425, "find[{ing] actual prejudice [to

the defendant) irrelevant," Young v.

United States, 107 S.Ct. 2124, 2138-39 n.

21 (1987), where the integrity of the

criminal justice system is at stake.

This case involves the supervisory

authority of the federal district courts to

dismiss an indictment before trial where

prosecutorial misconduct in the grand jury

process is so egregious as to "undermine{ ]

confidence in the integrity of the criminal

proceeding." See id. at 2137. Under such

circumstances, the injury to the grand jury

process is "not limited to the defendant"

but rather extends "to the jury system, to

the law as an institution, to the community

at large, and to the democratic ideal

reflected in the processes of our courts."

Ballard v. United States, 329 U.S. 187,

195 (1946).

The decision of the Tenth Circuit

impermissibly deprives the federal district

courts of supervisory authority to dismiss

an indictment prior to trial absent proof

of actual prejudice to the defendant. This

new and unwarranted standard effectively

eliminates the power of district judges to

deter prosecutorial misconduct before the

grand jury.2/

Certain instances of egregious

prosecutorial misconduct can dramatically

2/ In United States v. Mechanik, 475 U.S. 66, 72

(1986), Justice Rehnquist's majority opinion

specifically left open the question of whether the

federal district courts may exercise supervisory

authority to dismiss an indictment before trial

because of prosecutorial misconduct in the grand

jury process absent proof of actual prejudice to

the defendant.

affect the integrity of the criminal

justice system even if a particular

defendant cannot or does not prove actual

prejudice. "Harmless error” analysis,

which focuses exclusively on prejudice to

the particular defendant, overlooks not

only the effect of such misconduct on the

criminal justice system, but also the

problems that accompany proof of actual

prejudice. As such, the analysis is

dangerously inappropriate. Because the

federal district courts must not be

deprived of remedies that they need to

exercise supervisory authority over the

grand jury process -- in order to promote

public respect as well as the integrity of

the criminal justice system -- the ACLU

submits this brief amici curiae in support

of petitioners.

ARGUMENT

I. THE DISTRICT COURTS MUST BE

AUTHORIZED TO DISMISS AN INDICT-

MENT BEFORE TRIAL WHERE WILLFUL

AND REPEATED PROSECUTORIAL

MISCONDUCT IN THE GRAND JURY

PROCESS UNDERMINES THE INTEGRITY

OF THE CRIMINAL JUSTICE SYSTEM _

This case raises important questions

about the function of the grand jury and

the ability of district judges, exercising

their supervisory authority, to curb

prosecutorial abuse of the grand jury

process.

A. The Grand Jury is Essential

to the of the Criminal

Justice System

The need for supervisory authority to

dismiss an indictment before trial because

of prosecutorial misconduct relates

inextricably to the role of the grand jury

within our system of criminal justice. The

historic role of the grand jury, of course,

is “to provide a fair method for

instituting criminal proceedings," Costello

v. United States, 350 U.S. 359, 362 (1956),

to serve "as a protector of citizens

against arbitrary and oppressive

governmental action," United States v.

Calandra, 414 U.S. 338, 343 (1974), and to

assure tie “protecting [of] citizens

against unfounded criminal prosecutions."

Branzburg v. Hayes, 408 U.S. 665, 686-87

(1972).

Convening “as a body of lay persons

acting in secret," United States v. Hogan,

712 F.2d 757, 759 (2d Cir. 1983), the

grand jury must not only be “independent

and informed," but must also “stand between

the accuser and the accused... to

determine whether a charge is founded upon

reason or dictated by an intimidating

power or by malice and personal ill will."

Wood v. Georgia, 370 U.S. 375, 390 (1962).

In fulfilling its constitutional

mandate, the grand jury is especially

dependent upon the prosecutor throughout

the course of its proceedings. In

principle, as this Court has explained,

The United States At-

torney is the

representative not of

an ordinary party to a

controversy, but of a

sovereignty whose

obligation to govern

impartially is as

compelling as its

obligation to govern at

all; and whose

interest, therefore, in

a criminal prosecution

is not that it shall

win a case, but that

justice shall be done.

Berger v. United States, 295 U.S. 78, 88

(1935). The prosecutor "draws up the

indictment, calls and examines the grand

jury witnesses, advises the grand jury as

to the law, and is in constant attendance

-7-

during its proceedings." United States v.

Hogan, 712 F.2d 757, 75 (2d Cir. 1983).

"By virtue of their position," as one court

acknowledges, prosecutors have "gained such

influence over grand juries that these

bodies' historic independence has been

eroded." Ibid. One commentator states:

[A] prosecutor can greatly

influence the grand jury

because he or she controls

the proceedings and the flow

of information. This

unbounded influence has led

critics to characterize the

grand jury as a "rubber

stamp" of the prosecutor.

These critics fear that

jurors passively accept

whatever a prosecutor

presents. The jurors are

inexperienced in legal

matters and therefore are

inclined to rely improperly

on the prosecutor.

Note, The Exercise of Supervisory Powers to

Dismiss a Grand Jury Indictment, 45 Ohio

St. L.J. 1077, 1079-80 (1984).

The fact that grand jury proceedings

are secret and ex parte magnifies

legitimate concerns about the influence of

the prosecutor on the independence and

impartiality of the grand jury. Public

confidence thus requires that prosecutors

respect and abide the constitutional,

statutory and judicial limits imposed on

their conduct during the grand jury

process. When the purposes of the grand

jury are undermined by severe, deliberate

and repeated instances of prosecutorial

misconduct, the credibility and integrity

of the criminal justice system are

themselves put at risk.

B. Supervisory Authority Over

the Grand Jury Process Allows

the Federal Courts to Ensure

and Enhance The Integrity of

the Criminal Justice System

The federal courts have an interest

"in preserving and protecting the

- 9 -«

appearance and the reality of fair practice

before the grand jury... ." United

States v. Serubo, 604 F.2d 807, 817 (3d

Cir. 1979). This important institutional

interest is separate and "independent of

[the judiciary's] concern for the rights of

the particular defendant." Ibid.

This Court has repeatedly recognized

that "(t]he untainted administration of

justice is one of the most cherished

aspects of our institutions," Communist

a Vv Vv iv

Board, 351 U.S. 115, 124 (1956), requiring

"the Court to make certain that the doing

of justice be made so manifest that only

irrational or perverse claims of its

disregard can be asserted." Ibid. As

Justice Brandeis warned in an analogous

context, lawless government behavior

"breeds contempt for the law" and "invites

- 10 =

every man to become a law unto himself."

Olmstead v. United States, 277 U.S. 438,

485 (1928) (Brandeis, J., dissenting).

Use of the district court's

supervisory authority to promote this

important institutional interest has, with

good reason, traditionally not required

proof of actual prejudice to the defendant.

See generally Note, iso we

of the Federal Courts, 76 Harv.L.Rev.

1656, 1657 (1963). An emphasis on actual

prejudice ignores important institutional

values in the criminal justice system that

are distinct from the individual rights of

a particular defendant. Forms of

misconduct harmless to the particular

defendant can nevertheless have a

deleterious effect on public respect for

the criminal justice system, as well as on

the continued viability of that system.

- ll -

Deterrence of such misconduct is a

legitimate concern of courts responsible

for "maintaining civilized standards of

procedure and evidence in the

administration of criminal justice."

McNabb v. United States, 318 U.S. 332, 340

(1943) .3/

3/ The Fourteenth Amendment does not require a

criminal defendant to show "actual bias in the

tribunal . . . ; due process is denied by

circumstances that create the likelihood of

appearance of bias." Peters v. Kiff, 407 U.S. 493,

502 (1972). See In re Murchison, 349 U.S. 133, 136

(1955) ("Fairness of course requires an absence of

actual bias in the trial of cases. But our system

of law has always endeavored to prevent even the

probability of unfairness"); see also Taylor v.

Louisiana, 379 U.S. 466 (1965); Tumey v. Ohio, 273

U.S. 510 (1927). Similarly, "({w]jhere the interest

infringed is sufficiently important . . . [this

Court has] not hesitated to find actual prejudice

irrelevant when utilizing supervisory authority."

Young v. United States, 107 S.Ct. at 2138-39 n.21,

citing Ballard v. United States, 329 U.S. at 187.

- 12 -

C. Federal District Courts Must be

Authorized to Dismiss an Indict-

ment Before Trial, Absent Proof

of Actual Prejudice, Where

Prosecutorial Misconduct Impairs

The Integrity Of The Criminal

Justice System

District judges possess supervisory

authority not for the purpose of punishing

prosecutors but rather to ensure that the

criminal justice system works the way it is

designed to work. They are in the best

position to know when the criminal justice

system has broken down because they work on

a daily basis with the assistants in the

office of the United States Attorney. When

such a breakdown occurs, it is absolutely

critical that the lower court retain not

only authority to dismiss criminal

indictments as a deterrent, but also

discretion to determine when such a

deterrent is necessary to preserve the

integrity of the criminal justice system.

- 13 -

Dismissal of the indictment before

trial because of prosecutorial abuse is

obviously a serious step. There is no

evidence, however, that it is taken lightly

by district judges. Rather, the sanction

is used with "extreme caution," see United

States v. Asdrubal-Herrera, 470 F.Supp.

939, 942 (N.D. Ill. 1979). The published

cases show that successful motions to

dismiss because of serious irregularities

in prosecutorial behavior are, in fact,

rare. See e.g., United States v.

DeFabritus, 605 F.Supp. 1538, 1543

(S.D.N.Y¥. 1985); United States v. Kazonis,

391 F.Supp. 804, 805 (D. Mass. 1975),

aff'd, 530 F.2d 962 (lst Cir.), cert.

denied, 429 U.S. 826 (1976).

Rather, the lower courts exercise

supervisory authority to dismiss only "when

government conduct has placed in jeopardy

- 14 <-

the integrity of the criminal justice

system," United States v. Samango, 607

F.2d 877, 884 (9th Cir. 1979), or “if there

is evidence that the challenged activity

was something other than an isolated

incident unmotivated by sinister ends,"

United States v. Serubo, 604 F.2d at 817,

or if the incidents of prosecutorial

misconduct were “flagrant and

unconscionable." United States v. Hogan,

712 F.2d at 762. |

In United States v. Crocker, 568 F.2d

1049 (3d Cir. 1977), for example, the

court declined to dismiss an indictment

where the United States Attorney had failed

to inform a target defendant that he was

the subject of a grant jury investigation.

The court warned, however, that dismissal

would be appropriate if similar

- 15 -

prosecutorial inaction tainted future grand

jury proceedings:

[T}here is no suggestion that the

practice of giving such warnings

is long-established among the

United States Attorneys of this

Circuit ... . [{Wje have

recognized that we have

supervisory authority over the

conducting of grand jury

proceedings, [but] we have

declined to exercise that power

to require warnings of a

statutory recantation right

- « « « Thus in the future,

United States Attorneys in the

Third Circuit should not be

surprised if, pursuant to our

supervisory powers over the

manner of conducting grand jury

proceedings, we were to [dismiss

an indictment for failure to

warn] where, as here, specific

inquiry is made on the

defendant's behalf.

Id. at 1056. Adherence to this strict

standard ensures that the judiciary's

supervisory power in no way encroaches on

the prerogatives of the other branches of

government.

- 16 =-

"Sparing use, of course, does not mean

no use," as stated in an analogous context

by the district court in United States v.

Omni International Corp., 634 F.Supp.

1414, 1438 (D.Md. 1986). "Even

‘disfavored remedies'. . . must be used in

certain situations." Ibid. In the

extreme case, the United States Attorney

may fail to “recognize[] that... [hje or

she is ‘an administrator of justice,'" see

United States v. Gold, 470 F.Supp. 1336,

1347 (N.D.I1ll. 1979), quoting United States

v. Andrews, 444 F.Supp. 1238, 1244 (E.D.

Mich. 1978), and act out of "zeal, malice,

partiality or other prejudice." United

States v. DiGrazia, 213 F.Supp. 232, 235

(N.D.Ill. 1963). Where the district court

faces repeated instances of prosecutorial

misconduct, uncorrected despite admonition

from the bench, "judicial ‘tongue clicking'

-17-<-

and adjurations as to the ‘better practice’

are likely to have little impact on the

problem." United States v. Serubo, 604

F.2d at 817-18.

Under such circumstances, disciplinary

actions or contempt proceedings will also

not be adequate to preserve the integrity

of the judicial system. The federal

district courts have little, if any,

control over disciplinary proceedings and,

in any event, many instances of misconduct

are not subject to contempt sanctions. See

e.g., Vasquez v. Hillery, 474 U.S. 254, 262

& n.5 (1986).

In the extreme or egregious case,

therefore, where prosecutorial misconduct

or abuse is cumulative and repeated,

dismissal is the only effective deterrent

to preserve the integrity of the judicial

process. As Judge Friendly explained in a

- 18 -

similar context, “a reversal with

instructions to dismiss the indictment may

help to translate the assurances of the

United States Attorneys into consistent

performance by their assistants." United

States v. Estepa, 471 F.2d 1132, 1137 (2d

Cir. 1972) (Friendly, J.).

As demonstrated by the following

decisions, supervisory authority to dismiss

the indictment before trial cannot and

should not be limited to situations in

which actual prejudice can be shown. Even

in extreme cases, a number of reasons may

preclude proof of actual prejudice. This

Court has recognized, however, in analogous

jury contexts, that the difficulty of

establishing prejudice does not mean that

the error is harmless. See Lockhart v.

McCree, 476 U.S. 162 (1986).

- 19 -

In United States v. Gold, 470 F.Supp.

at 1336, for example, the district court

dismissed the indictment, following an

evidentiary hearing that revealed

“extraordinary facts," see In re November

1979 Grand Jury, 616 F.2d 1021, 1023 (7th

Cir. 1980), including the prosecutor's

conflict of interest, the withholding of

exculpatory evidence, the destruction of

potentially relevant evidence, improper

testimony as a witness before the grand

jury, and improper comments on the exercise

of constitutional rights. "These

circumstances," the district court stated,

“revealing as they are, disclose a

totality of grand jury abuse by government

attorneys." United States v. Gold, 470

F.Supp. at 1355-56.

In United States v. Gallo, 394 F.Supp.

310 (D.Conn. 1975), the district court

- 20 -

likewise granted a motion to dismiss where

the prosecutor obtained a second

indictment by submitting to the grand jury

transcripts of witness testimony before a

prior grand jury. Over the preceding

decade, the Circuit had issued a series of

decisions "“condemn[{ing] the casual attitude

with respect to the presentation of

evidence manifested by the decision of the

Assistant United States Attorney to rely on

{[hearsay] testimony," United States v.

Estepa, 471 F.2d at 1135. In equal

measure, the district court had warned

against the use of hearsay where first-hand

information from live witnesses was readily

available. Nevertheless, the prosecutor

relied on selective portions of a grand

jury transcript that was known to be

"permeated with perjurious statements as to

crucial, material events," without advising

- 21-

the grand jury as to the hearsay quality of

the evidence presented. United States v.

Gallo, 394 F.Supp. at 315. Granting the

motion to dismiss, the district court made

clear that other, less drastic sanctions

had failed to achieve their desired effect:

In the exercise of its supervisory

powers over the conduct of judicial

business in this District, this Court

must not condone the actions of the

prosecutor in the case at bar with

"yet another admonition."

Id. at 316 (citations omitted).

The district courts have thus

recognized that dismissal is a sanction to

be used cautiously, a deterrent more often

threatened than exercised. See e.g.,

United States v. Pino, 708 F.2d 523, 530

(10th Cir. 1983). In the appropriate

case, however, exercise of such supervisory

authority is essential lest the court be

perceived to "brook behavior-that degrades

the grand jury into a rubber stamp, and the

- 22 -

testing of the prosecutor's evidence into

an empty ritual." See United States v. Al

Mudarris, 695 F.2d 1182, 1188 (9th Cir.),

cert. denied, 461 U.S. 932 (1983). It is

essential, therefore, that in an

appropriate case, the district courts be

able to back-up their admonitions and

reprimands with the definitive action of

dismissal.

II. THE PRACTICAL IMPOSSIBILITY

OF PROVING ACTUAL PREJUDICE

WOULD ELIMINATE DETERRENCE

OF PROSECUTORIAL MISCONDUCT

IN _MANY CASES OF ABUSE ___

The decision below nevertheless

authorizes district courts to dismiss

criminal indictments only on a showing of

actual prejudice to the defendant. As we

have seen, harmless error analysis ignores

the fact that repeated prosecutorial abuse

may significantly impair the integrity of

- 23 -

the criminal justice system -- and public

confidence in that system -- without

causing actual prejudice that can be

readily proved by a particular defendant.

A. Prosecutorial Misconduct Can

Dramatically Impair Public

Confidence Even if a

Particular Defendant Does

Not or Cannot Prove Actual

Prejudice _

Limiting the arsenal of weapons

available to the district court in an

egregious or extreme instance of

prosecutorial misconduct can be expected to

undermine public confidence in the criminal

justice system. As this Court recently

stated, even the “appearance of impropriety

. diminishes faith in the fuirness of

the criminal justice system in general."

Young v. United States, 107 S.Ct. at

2139.

- 24 -

1"

The grand jury has been the focus of

increasing criticism in recent years.4/

Some of the criticism has focused on the

availability to the prosecutor of a

"terrible array of coercive methods" that

can be used in secret and out of public

view. Ibid. See United States v. Hogan,

712 F.2d 757, 759 (2d Cir. 1983)("The gain

in prosecutors' influence over grand

juries is all the more reason to insist

that . . . limitations [upon prosecutorial

conduct] be observed strictly") To permit

misuse of these methods -- even in

instances deemed harmless to a particular

defendant -- could “impair public

4/ See, e.g., Grand Jury Disclosure: Hearings on

S.1676 before the Senate Committee on the

Judiciary, 99th Cong. (Nov. 19, 1985); Grand Jury

Reform: Hearings before the Subcommittee on

Immigration, Citizenship and International Law,"

of the House of Representatives Committee on the

Judiciary, 95th Cong. ( Mar. 17 - June 29, 1977).

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willingness to accept the legitimate use of

those powers." Young v. United States, 107

S. Ct. at 2139-40. See Taylor v.

Louisiana, 419 U.S. 522, 530 (1975)

(community participation is essential to

public confidence in the criminal justice

system); see also M. Frankel & G.

Naftalis, The Grand Jury 120 (1977)

(importance of grand jury as a vehicle for

citizen participation) .2/

The continued viability of the grand

jury process requires broad powers of

3/ In federal courts, 81 percent of the criminal

convictions obtained in fiscal 1982 were based on

guilty pleas. Note,

, 87 Colum.L.Rev.

142, 142 n.1 (1987). Given this reality of the

criminal justice system, the majority of defendants

will never be judged by a jury of their peers. The

grand jury is the only point where the comunity

will participate in determining whether to impose

criminal sanctions. Prosecutorial misconduct

before the grand jury is thus highly detrimental to

public confidence and the viability of the criminal

justice system.

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investigation in order to gather evidence

of criminal activity. "As a grand

inquest," this Court has stated, the grand

jury is "a body with powers of

investigation and inquisition, the scope of

whose inquiries is not to be limited

narrowly by questions of propriety or

forecasts of the probable result of the

investigation... ." Blair v. United

States, 250 U.S. 273, 282 (1919). Public

confidence is undermined, however, if the

prosecutor uses the grand jury process for

purposes inconsistent with its historic

role. This occurs, for example, where the

government attorney uses the grand jury

"'for the sole or dominating purpose of

preparing an aiready pending indictment for

trial.'" United States v. Dardi, 330 F.2d

316, 336 (2d Cir. 1964) (quoting district

court opinion). Where the abuse is

- 27 -

repeated and uncorrected -- despite

admonition -- the public may properly fear

"a possible revival of a version of the

English Star Chamber." United States v.

Doss, 545 F.2d 548, 549 (6th Cir. 1976).

"(E}mployment of the grand jury as a

discovery instrument to help the government

prepare evidence to convict an already

indicted defendant .. . would pervert its

constitutional and historical function,"

ibid., and thus undermine confidence in the

integrity of the judicial process.

By the same token, because a grand

Sury's investigatory powers are so

extensive, it would be extremely tempting

for any Civil Division or agency attorney

to seek impanelment of a grand jury --

thereby gaining access to sworn testimony

and pertinent documents -- when an

independent investigation has become

- 28 -

frustrated. Absent proof of actual

prejudice to a particular defendant, strong

policy reasons may nevertheless warrant

dismissal in the extreme case where

evidence of misconduct is cumulative and

egregious.

Similarly, public confidence is

undermined if the government attorney

improperly enlists the grand jury to

assist in administrative investigations.

Dissemination of grand jury information to

government experts in an unrelated civil

proceeding involving third-parties might

not cause actual prejudice to the defendant

-- but the practice, unchecked and

pervasive, would destroy the appearance of

grand jury independence.

In other instances, as well, public

confidence will be undermined, even where a

particular defendant cannot or does not

- 29 «-

prove actual prejudice, because of

prosecutorial abuse of the grand jury

process. For example, there is a strong

potential for abuse when news reporters or

other media representatives are called as

witnesses before the grand jury, when the

prosecutor has reasonable basis to believe

that they will claim a First Amendment

privilege not to testify. "[(0)fficial

harassment of the press," this Court has

stated, “undertaken not for purposes of law

enforcement but to disrupt a reporter's

relationship with his news sources would

have no justification." Branzburg v.

Hayes, 408 U.S. at 707-08. Under such

circumstances, a particular defendant may

not be able to prove actual prejudice. But

the damage to public trust is great.

Concerns implicated by prosecutorial

misconduct -- the integrity of the

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criminal justice system, the perception of

sovereign impartiality, and the ideal of

public participation in the criminal

process -- are too important for public

confidence to leave the district courts

without adequate remedy.£/ "The use of

supervisory powers warns prosecutors that

courts will act if prosecutors behave

improperly. This warning might prevent

future misconduct that otherwise would

require the dismissal of indictments

- + «" Note, The Exercise of Supervisory

Powers to Dismiss a Grand Jury Indictment,

45 Ohio St. L.J. at 1094. Lest the courts

appear to condone conduct detrimental to

the integrity of the judicial system,

dismissal must remain a remedy available to

the district court in an appropriate case.

&’ Dismissal, of course, leaves the prosecutor

free to seek another indictment.

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B. Actual Prejudice Is Difficult

If Not Impossible to Prove

Finally, the requirement of actual

prejudice impermissibly shifts to the

defendant the burden of proving that errors

caused by prosecutorial misconduct were not

harmless.2/ This standard is

inappropriate. It is extremely difficult,

if not impossible, to prove actual

prejudice even in cases where the alleged

abuse or misconduct has impaired the

independence and impartiality of the grand

jury.

First, "(t]he prospect of peering

into the grand jurors' minds, or of

examining them individually, to ascertain

whether . . testimony was improperly

used, is both impractical and unpalatable."

2/ by insisting that the defendant prove actual

prejudice, the decision below improperly shifts

the burden of proof from the government.

- 32 -

United States v. Hinton, 543 F.2d 1002,

1010 (2d Cir. 1976), cert. denied, 429 U.S.

1066 (1977). As one commentator explains:

Because the defense attorney is barred

from the proceedings and because grand

jury proceedings are surrounded by

secrecy, the defense attorney is often

uninformed about the substance of the

hearings. Moreover, no one knows

exactly how grand juries function and

what actually influences their

decisions. The testimony of jurors

cannot be determinative on the

question of whether they were

improperly influenced. Few people

will admit that they were biased.

Additionally, some jurors may not

realize that they were improperly

influenced.

Note, The Exercise of Supervisory Powers

to Dismiss a Grand Jury Indictment, supra,

at 1093. As Justice O'Conor stated in an

analogous jury context, "Determining

whether a juror is biased or has prejudged

a case is difficult, partly because the

juror may have and interest in concealing

his own bias and partly because the juror

may be unaware of it." Smith v. Phillips,

- 33 -

455 U.S. 209, 221-22 (1982) (O'Connor, Jr.,

concurring); see also Marshall v. United

States, 360 U.S. 310, 312 (1959) (statement

of jurors that they would not be influenced

by publicity not dispositive).

Moreover, the very inquiry into state

of mind jeopardizes the important policy of

grand jury secrecy. See e.g., United

States v. Pignatiello, 582 F.Supp. 251,

253 (D.Col. 1984); United States v. Sears,

Roebuck & Co., 579 F.Supp. 1055, 1056

(C.D. Cal. 1984). The requirement of

grand jury secrecy is presently codified in

Rules 6(d) and (e) of the Federal Rules of

Criminal Procedure. Its roots, however,

are “older than our Nation itself."

Pittsburgh Plate Glass v. United States,

360 U.S. 395, 399 (1959). As Anglo-

American law has recognized for centuries,

grand jury secrecy prevents intimidation of

- 34 -

jurors, protects the innocent accused, and

insures that the grand jury has the

opportunity to make an independent

examination free from undue influence.

United States v. Procter & Gamble, 356 U.S.

677, 681 (1958). The important policy of

grand jury secrecy should not be undermined

by requiring proof of actual prejudice

before the district court may dismiss an

indictment when prosecutorial misconduct is

so egregious as to taint the criminal

justice system itself.

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CONCLUSION

The injury caused by prosecutorial

misconduct in the grand jury process cannot

be properly be assessed if district courts

are limited to asking whether the defendant

would have otherwise been indicted. This

Court has expressly rejected such a narrow

view of its supervisory authority. Most

recently, this Court noted in Young v.

United States, that "what is at stake is

the public perception of the integrity of

our criminal justice system. 107 S.Ct. at

2140. With so much at stake, district

court judges must not be deprived of the

remedies that they legitimately need to

exercise properly supervisory authority

over the grand jury process.

For the foregoing reasons, the

- 36 -

decision below should be reversed.

Respectfully submitted,

John A. Powell

(Counsel of Record)

Helen Hershkoff

Steven R. Shapiro

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

David H. Miller

American Civil Liberties

Union Foundation

of Colorado

815 East 22 Avenue

Denver, Colorado 80205

(303) 861-2258

Richard F. Ziegler

Martha F. Davis

Cleary, Gottlieb,

Steen & Hamilton

One State Street Plaza

New York, New York 10004

(212) 344-0600

Dated: February 25, 1988

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