Thursday, February 5, 2009

The Federal Grand Jury

A pair of ex-prosecutors discuss the powerful investigative tool.

Posted By on Thu, Feb 5, 2009 at 4:00 AM

So what do we know about the investigation of Mayor Willie Herenton and how do we know it? A partial answer would be: A federal grand jury has been meeting, and the FBI has been going around interviewing people. But that raises more questions than it answers. When a grand jury meets, fact and rumor are easily confused, and the innocent often get lumped in with the guilty.

Hickman Ewing Jr. was the United States attorney in Memphis in the 1980s and one of the Whitewater prosecutors in the 1990s. Mike Cody was the United States attorney from 1977 to 1981, taking over when Democrat Jimmy Carter succeeded Republican Gerald Ford as president. I asked them about the independence of U.S. attorneys and the role of the grand jury in investigations of public officials.

How are local investigations affected when a new attorney general is sworn in, as Eric Holder was Tuesday in Washington?

While noting that it has been nearly 30 years since he was a federal prosecutor, Cody said, "The great majority of the decisions are made at the local level, although there is certainly communication on sensitive matters with people in the Public Integrity section." Cody said new U.S. attorneys typically go slow and do not open up or close big investigations. "The staff and professional people in the office are more valuable to you than you might be to them, certainly in the initial stages," he said.

Cody kept his predecessor's top assistants, Ewing and Dan Clancy, who would handle most of the high-profile corruption trials in Memphis for the next 15 years. The independence of the Memphis office was put to the test in 1993 when U.S. representative Harold Ford Sr. went on trial shortly after Democrat Bill Clinton became president. The late federal judge Jerome Turner famously quashed an attempt by the Justice Department to interfere with jury selection in the trial. Ford was acquitted.

What's the difference between an FBI interview and a grand jury subpoena?

"If they FBI asks to talk to you, you don't have to talk to them," Ewing said. "If you get a subpoena, then you do." FBI agents are sort of like reporters, only with better clothes and pensions. They interview all kinds of people in pursuit of the facts. The agent writes up a memo of the interview. "The problem with that is it isn't word for word. It's questionable whether it can ever be used," Ewing said.

What about a grand jury appearance?

"You get them in there under oath," Ewing said. Prosecutors and grand jurors get to see the demeanor of the witness. And prosecutors "lock 'em in" as to what they say, what they remember, and what they did. This testimony can be used at trial.

Is a grand jury investigation typically wide-ranging?

"A lot of times you call virtually every important witness to the grand jury," Ewing said. Because the grand jury's work is secret, there is a lot of speculation about targets. Ewing said, in his experience, "Normally you do not subpoena a target of a grand jury to appear before the grand jury." But the target does get an opportunity to appear, usually late in the game. "Most targets decline, but a few come," Ewing said.

Can a witness bring his or her lawyer into the grand jury room?

No, but the lawyer can be right outside, and the witness can leave the room to consult with the lawyer. Lying to a grand jury can bring a perjury charge.

Are witnesses sworn to secrecy?

"Witnesses can say anything they want about their appearance," Ewing said. "They can have a press conference if they want to." He recalled a target who refused to answer any questions in front of the grand jury, then went outside and told the press he had answered every question and said other things that prosecutors knew were not true.

Are subpoenas public information?

No, but reporters can hang around the federal building and the grand jury room and see who comes and goes.

Are some people, like the banking system, "too big to fail"?

Don't count on it. Former University of Memphis basketball coach Dana Kirk was investigated within a year of taking his team to the 1985 Final Four. Ford Sr. was tried twice at the height of his powers. So was John Ford.

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