Friday, January 30, 2009

Everything You Wanted to Know About Grand Juries But Were Afraid to Ask

Posted By on Fri, Jan 30, 2009 at 4:00 AM

So what do we know about the investigation of Mayor Willie Herenton and how do we know it?

That's one of the hottest topics in town, not only because of the subject matter but because of the problems it presents to prosecutors and to reporters and their readers and viewers. Fact and rumor are easily confused, and the innocent often get lumped in with the guilty.

One person who has been there and done that is Hickman Ewing Jr., former United States attorney in Memphis in the 1980s and one of the Whitewater prosecutors in the 1990s. I asked him to explain the role of the grand jury in investigations of political corruption.

But first, I can say on my own hook that there is an ongoing investigation of the mayor. Several sources have told me they have been interviewed in recent weeks by FBI and IRS agents. No surprise there. The questions, as The Commercial Appeal has also reported, involve the Greyhound Bus terminal downtown and the future terminal near the airport. MATA is another topic.

And this month, questions have been asked about the mayor's annual Christmas holiday party and why the $1,000 donors were told to make their checks out to the mayor's special assistant, Pete Aviotti. Some Memphis bluebloods -- "Herenton’s hypocrites," as one contributor referred to them in 2007, when it was clear that the mayor’s political support was waning in the white community -- have been interviewed by FBI agents about this, and some of them have been subpoenaed to talk to the grand jury.

I've given them anonymity for a couple of reasons. One, I'm most interested at this stage in finding out the direction of the investigation. Two, it seems a little unfair to me to identify some witnesses but not others, especially when being interviewed much less investigated by a grand jury can unfairly cast a person in a negative light. Of course if someone publicly announces an FBI interview or grand jury appearance, that's different, and some people have done that.

Anyway, here's what Ewing has to say about the Grand Jury process.

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

One is voluntary and the other isn't. "If the 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 gather information from all kinds of people in pursuit of the facts, just like reporters do. 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. That can be a problem later on if a witness changes his or her story. This testimony can be and often is admitted into evidence if there is an indictment and the case goes to 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. There should not be any negative implications drawn, which is not to say that doesn’t happen. "The FBI is just trying to find facts from anybody who might have information, even if they are on the periphery."

Does the person or persons under investigation get a target letter?

Without consulting the current U.S. Justice Department manual for any updates, Ewing said his experience is that "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 [appear]," Ewing said.

What are the exceptions?

Sometimes, in high-profile cases, when a person wants to influence potential jurors or the general public, he or she will publicly offer to meet with the grand jury. Also, a target can be compelled to come to the grand jury by subpoena if the prosecutor, the grand jurors, or both want to hear from the target. In the case of former University of Memphis basketball coach Dana Kirk, Ewing got a judge to order Kirk to appear. Kirk took the Fifth Amendment in response to questions.

Can a witness bring their 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 after each question. Lying to a grand jury can result in a perjury charge.

Are witnesses sworn to secrecy?

No. Prosecutors and grand jurors can't discuss an ongoing investigation, but "witnesses can say anything they want about their appearance. They can have a press conference if they want to," Ewing said. He recalled a case where a target witness refused to answer any questions in front of the grand jury, then went outside and told the press he had answered every question and, in the process, said things prosecutors knew were not true. The person was never indicted because prosecutors couldn't make a strong enough case.

Is a grand jury subpoena public information?

No. But reporters can and do hang around outside the federal building and the fourth-floor grand jury room on days when grand juries are meeting in order to see who comes in and out, as they did this week when, as reported, Rodney Herenton and MATA chief Will Hudson appeared.

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