Pagano argued in court papers that the supervising judge incorrectly told O'Neill that being put under oath required her to "'testify completely, truthfully and accurately,'" that she could not speak to a lawyer about her testimony without permission of the court, and that "'only you know if these questions will expose you to criminal liability.'"
Pagano added in court papers that it "is the purpose of counsel" to advise clients of the potential for exposure to criminal liability, "especially in a case" where the law is unclear.
"Grand juries really need to be supervised properly; otherwise it becomes a hotbed for potential abuse," Pagano said.
Another problem in O'Neill's case, Pagano said, was that she was subpoenaed just the day before she was supposed to appear before the grand jury, prohibiting an opportunity to consult an attorney, and she did not receive the advice-of-rights form.
Pagano also said he is concerned that investigating grand juries breed familiarity between prosecutors and the supervising judge because of their regular ex parte conduct without a defense attorney adversary present to provide corrective balance.
Jeff Lindy, a criminal defense attorney with Lindy & Tauber in Philadelphia who said he presented hundreds of cases to indicting grand juries in New York as a state prosecutor and also has defended clients before state and federal grand juries, said New York was like Pennsylvania, in which there are no clear-cut rules on how grand juries should proceed.
Preliminary hearings work as a check and balance in the criminal justice system because they hold prosecutors to at least a low burden of proof, Lindy said.
In New York, dozens of drug defendants would be indicted every hour, Lindy said, describing a scene in which a narcotics officer would sit on the stand before the grand jury reading his or her notes about the basic facts of an arrest, the prosecutor would walk out for a moment, and the grand jury would return a "true bill."
In contrast, the Department of Justice has national regulations that apply to every federal prosecution on how prosecutors conduct themselves and how to treat witnesses brought before a grand jury, Lindy said.
"You don't have the controls of a centralized prosecutorial agency like the Department of Justice and, if people think it's going to be a controlled and measured prosecutorial system, they are wrong. My experience with state prosecutors — this is true across the board — their approach to the grand jury is that, 'Oh goody, we can now investigate without worrying about the Constitution.'"
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