- The Washington Times - Friday, July 20, 2001

D.C. prosecutors are allowed to seek a grand jury indictment even though they have evidence of a defendant's innocence, according to a critical study by a group seeking to revamp the District's local and federal grand jury system.
The study by the Council for Court Excellence recommends that prosecutors be required to present to D.C. Superior Court and federal grand juries evidence that could exonerate suspects and that charges be dismissed if prosecutors fail to present such evidence.
"[I]f the prosecutor is required to present exculpatory evidence to the grand jury, it will reduce the number of indictments that cannot be supported at trial because the prosecutor will no longer have the incentive to indict a case on weak evidence in hope of obtaining sufficient evidence in the investigation before trial," states the 106-page study, which was released yesterday.
Titled "The Grand Jury of Tomorrow," the two-year study was conducted by a committee of members of the D.C. Bar, federal and Superior Court judges, public defenders and citizens.
In recommending 23 changes to the D.C. grand jury system, the study notes that grand juries are designed to protect citizens from unfounded prosecutions but "the grand jury system has come under increasing criticism for failing to discharge this duty."
Irvin Nathan, a member of the committee studying grand juries and a lawyer at the firm of Arnold and Porter, said the independence of grand juries needs to be improved. He said prosecutors should be required to tell jurors all the evidence even if proves the suspect's innocence.
"To prove it at trial is too late. It is too late for his reputation," Mr. Nathan said during a news conference yesterday.
Grand juries meet in secret as jurors determine whether evidence shows that an accused person probably has committed a crime. A simple majority of the 23-member panel is needed to return an indictment, and only prosecutors present evidence and question witnesses.
The Council for Court Excellence study states that grand juries are too easily swayed by the U.S. Attorney, the prosecutor in federal and local cases in the District. It recommends that that witnesses and targets of investigations be allowed to testify before grand juries with their attorneys present. It also recommends that witnesses be warned that their testimony can be used against them.
Former U.S. District Court Chief Judge Norma Holloway Johnson and former U.S. Attorney Wilma A. Lewis withdrew their support early in the study, it states. Judge Johnson and Miss Lewis were critical of the study.
"[T]he report uses terminology that suggest irregularities without providing any evidence to support that suggestion," Miss Lewis wrote in a March 27 letter to the council in response to a draft of the report.
"I find that many of the recommendations would destroy the function of the grand jury system as we know it in federal courts," Judge Johnson said in a letter of response dated April 4 to the council. "Any change that would increase the disclosure of grand jury matters or that would decrease the independence of the grand jury appears to be detrimental to our system of justice."
Former Superior Court Chief Judge Eugene Hamilton also refused to participate. His successor, Judge Rufus B. King III, said in a letter he would study the recommendations.
The Council for Court Excellence is a private, nonprofit corporation that promotes court reforms and has been the driving force in modernizing the jury system, changing laws and revising procedures. The recommendations are not binding.
The study's main focus is the influence federal prosecutors exert over grand juries.
Only witnesses and prosecutors appear before local and federal grand juries in the District, the study states, adding that prosecutors do not provide jurors with enough information.
The study states that the grand jury process appears to be unfair because the D.C. Superior Court grand juries meet in the same building that houses the U.S. Attorney's Office. It recommends that grand juries meet in a court facility to show the juries' impartiality.
"[T]he location of the grand jury should reflect its status as an arm of the court, independent from the prosecutor," the study says.
Federal grand juries are convened inside the federal courthouse.
One of the study's most controversial recommendations is for witnesses' attorneys to appear before grand juries. Witnesses' attorneys currently must wait outside while their clients are questioned.
The study says having the witnesses' attorneys present would prevent abuses of their rights, noting that 21 states allow attorneys to appear with their clients before grand juries.
The study recommends that "targets" of investigations be allowed to testify before grand juries, saying the juries could have more balance by hearing testimony from the person they are considering indicting.
It also recommends that the number of jurors be reduced and that jurors' time of service be shortened. A grand jury has 23 members; 16 are needed for a quorum and 12 are needed to vote for an indictment or acquittal. The study says the number is unwieldy and should be reduced to 15 jurors, with 11 for a quorum and eight to vote for an indictment.
Grand jury facilities also should be improved to provide better comfort and security for jurors, the study states.

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