Editor’s note: This article is the first in a two-part series about grand juries.
With the return of the indicting grand jury to Pennsylvania last week for cases involving witness intimidation, defense attorneys are raising concerns that the grand jury process provides much less protection for defendants, while prosecutors say that indicting grand juries are necessary to protect witnesses facing the threat of harm or even death if they testify about homicides and other serious crimes.
Criminal defense attorney Michael J. Engle, of the Law Offices of Michael J. Engle in Philadelphia, said there are no rules or mechanisms in Pennsylvania state court yet in which people subpoenaed to appear before a grand jury are advised that they are being subpoenaed as a witness who is most likely not facing criminal liability; as a subject of the grand jury who could potentially face criminal liability depending upon the development of the evidence; or as a target of the grand jury being advised that they are an imputed defendant and, “‘We’re coming after you and therefore you’re on notice; you probably need a lawyer more than anyone else.’”
“I think it should be incumbent upon the prosecutor — whether it’s a district attorney or attorney general — the prosecutor should have the obligation upon subpoenaing a witness [to ensure] those individuals are told whether or not they are the target, subject or witness to an investigation,” Engle said. “They should be given that information … so they can adequately decide how to exercise their constitutional rights.”
The Philadelphia District Attorney’s Office is planning on convening a separate indicting grand jury from its investigating grand jury, although the rules allow for investigating grand juries also to function as indicting grand juries.
Kirsten Heine, chief of the Philadelphia District Attorney’s charging unit and who will be supervising the indicting grand juries along with fellow prosecutor Jacqueline Coelho, said there are no plans for target letters as used by federal prosecutors because the initial plan is to use the indicting grand juries post-arrest when defendants will already be on notice because they have been arrested and will have been appointed counsel.
Heine said she understands why defense counsel want to have the opportunity for cross-examination during a preliminary hearing but that indicting grand juries in witness intimidation cases reflect a “countervailing public interest” of keeping witnesses safe from being intimidated.
“In some cases a lot of pressure is brought to bear on our witnesses,” Heine said. “This was what was necessary to keep them protected and make sure that someone does not just not get heard.”
While prosecutors say that not having witnesses have to testify during public preliminary hearings will assuage witness intimidation, those witnesses still know they will have to testify at a jury trial, Engle said.
“All that it does is shortcut the preliminary hearing process,” he said.
David Augenbraun, a Philadelphia assistant district attorney who has been supervising the office’s investigating grand juries for a dozen years, said that indicting grand juries at the federal level are different because those indicting grand juries are taking place pre-arrest and that is why target letters are issued.
Indicting grand juries in Philadelphia are going to be typically used post-arrest and those criminal cases will be diverted from the normal preliminary hearing process into the indicting grand jury if there is evidence of witness intimidation, Augenbraun said.
Witnesses are permitted to bring counsel with them to an investigating grand jury and the attorney can be in the room with them, unlike federal grand juries or grand juries in other states, Augenbraun said. Defendants or their counsel would not be present for indicting grand juries, he said.
While state investigating grand juries are pre-arrest, target letters, for one thing, are not required under the rules and, for another thing, it is not yet clearly defined who is the target in those sorts of grand juries because the investigations are ongoing, Augenbraun said.
Witnesses receive an advice-of-rights form, including that they can consult an attorney, which is important because while an investigation is developing it’s not always clear-cut that a person coming into the investigating grand jury does not have criminal exposure, Augenbraun said.
While some argue that prosecutors have too much power in grand juries, the grand juries are under the supervision of a judge, “so you have a neutral party who is supervising it and reviewing what’s going on there. It’s not like an out-of-control body,” Augenbraun said.
Philadelphia criminal defense attorney Gregory J. Pagano said his concern with the expansion of grand juries in Pennsylvania is whether judicial supervision will be adequate to protect defendants and other witnesses.
Pagano formerly represented Eileen O’Neill, who is facing a 2013 trial on criminal charges including theft by deception, conspiracy and perjury. A co-defendant in her case faces criminal charges in the alleged murders of an abortion patient and of several infants who allegedly had been born alive.
Pagano was successful in a motion to have O’Neill’s grand jury testimony suppressed.
According to court papers, O’Neill was sworn in as a witness before the investigating grand jury by former Philadelphia Court of Common Pleas Judge Renée Cardwell Hughes on August 20, 2010.
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.’”
The only advice a defense attorney can give a client called before a state grand jury is to plead a Fifth Amendment privilege, Lindy said.
There are checks and balances with grand juries, Heine said.
“We’re going to have to convince the majority of 23 people before we can get somebody indicted,” Heine said. “These are members of the general public. They are not lawyers or judges.”
After indictment, the grand jury testimony is subject to motions to quash, and the grand jury panels are subject to challenges as who the prosecutors picked for the jury panel, Heine said.
Even though it is not the standard practice in Pennsylvania state court for people subpoenaed to appear before a grand jury to be notified if they have some criminal exposure, attorneys “become very skilled at knowing what’s going on,” said R. Bruce Manchester, a criminal defense attorney with Manchester & Associates in Centre County who has represented several clients in state-level investigating grand juries.
Once an attorney sits down with his or her client and does a detailed interview, an attorney can usually figure out if his or her client has any exposure, Manchester said.
If a client has exposure and if prosecutors are willing to negotiate, a defense attorney can negotiate immunity for his or her client in exchange for testimony, Manchester said.
Next week’s installment examines conflicts between counsel representing institutions and those institutions’ agents or employees in investigating grand juries.