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Our constitution’s architects had prescience but were not omniscient. They well understood that when the decision to indict and the duty to convict are vested in the same person or institution, there is a pronounced risk of abuse and arbitrariness. Hence the institution of the grand jury, which was included in our Bill of Rights as a “protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor.” U.S. v. Dionisio, 410 U.S. 1, 17 (1973). The grand jury has been idealized as an institution in which ordinary citizens determine the propriety of an indictment in a manner designed to sift innocence from guilt and ensure that those undeserving of a criminal charge are shielded from public disclosure of the investigation. See, e.g., Hale v. Henkel, 201 U.S. 43, 59 (1906) (value of grand jury was its power “to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will”) (overruled in part on other grounds). But any realistic observer of our criminal justice system must recognize that, save in highly charged cases such as those involving police shootings or alleged civil rights violations, the indicting grand jury rarely acts as a meaningful check on the prosecutor. The courts have only retrospective oversight of such decisions, and even this is a narrow, constricted procedural review, except conceivably in extreme circumstances. This article proposes a mechanism whereby fundamental values of fairness and consistency can be reasserted and revitalized in the charging process. As a former New York chief judge once said, grand jurors will “indict a ham sandwich” at the instance of a prosecutor. The grand jury’s function as a check on unfounded or intemperate accusations has completely atrophied in a large class of cases. See, e.g., See Fred A. Bernstein, “Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury,” N.Y.U. L. Rev. 563, 577 (1994) (noting the various terms used to criticize the modern grand jury, including “rubber stamp,” “tool” or “playtoy” of the prosecution). The authors of a widely cited treatise on grand jury practice have recognized that “the indicting function of the grand jury is no longer of much importance in many jurisdictions.” Beale, et al., Grand Jury Law and Practice, � 1.1. In practice, the decision whether to indict is in the hands of a prosecutor who, in the words of then-U.S. Attorney General Robert H. Jackson, “has more control over life, liberty and reputation than any other person in America.” Robert H. Jackson, “The Federal Prosecutor” (1940) (reprinted in 24 J. Am. Judicature Soc’y 18). Jackson made this observation in 1940, before the enactment of the Federal Rules of Criminal Procedure, which gave the prosecutor even greater control over grand jury proceedings (see Roger Roots, “If It’s Not a Runaway, It’s Not a Real Grand Jury,” 33 Creighton L. Rev. 821, 835-839 (2000)); before the proliferation of enormously broad and powerful criminal statutes such as the Racketeer Influenced and Corrupt Organizations Act; before many of the interpretations of the federal wire and mail fraud statutes that have criminalized huge swaths of business and government conduct (see Jeffrey J. Dean & Doye E. Green Jr., “ McNally v. United States and Its Effect on the Federal Mail Fraud Statute: Will White Collar Criminals Get a Break?,” 39 Mercer L. Rev. 697, 703 (1988); and before the passage of the sentencing guidelines, which tilted the balance of power even further � some might say overwhelmingly � in favor of the federal prosecutor. The Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (1984) (codified at 18 U.S.C. 3551-3586, 3621-3625, 3742 (1988) and 28 U.S.C. 991-998 (1988). Despite the prosecutor’s obligations under the law to remain neutral and magisterial, he will always be subject to pressures that risk distorting his judgment. Prosecutors are often ambitious and may seek to use their position for personal advancement. Many examples attest to efforts by public prosecutors to move into a broader political role: Rudolph Giuliani turned his prosecutions of white-collar criminals into a mayoralty; Eliot Spitzer, who as New York state attorney general secured extraordinary civil recoveries to the state, is now the state’s governor. The lure of a highly paid partnership in the private criminal defense bar also encourages the prosecutor to distinguish himself, in the hope of increasing his worth in the private sector. It is the rare large firm that lacks at least one partner who can claim to be an “ex-prosecutor” � a pragmatic response to the recent criminalization of much business conduct. Structural pressures also influence the prosecutor and bias the grand jury’s indicting function. Any prosecutor who has devoted months or years to an investigation will have a strong desire to demonstrate that his or her work has not been a waste of time, and will face difficulty � consciously or not � making a truly neutral presentation to the grand jury. This is a particularly dangerous circumstance when, depending upon how a case is presented, the same facts may or may not be viewed as criminal. A similar instinct gives rise to the trend in prosecutions for perjury or obstruction of justice, essentially crimes against the prosecutor himself. Although these cases are often justified as necessary to protect the judicial or investigative process, they can be driven by a prosecutor’s sense of personal offense at perceived interference with her work. Potential for abuse When we look more broadly at the state of criminal justice in this country, the increased potential for abuse in the charging function is a cause for concern. The sentences being handed down for many financial and regulatory crimes are long, both on an absolute basis and when compared to sentences for similar crimes in other countries. In U.S. v. Ebbers, 458 F.3d 110, 129 (2d Cir. 2006), the 2d U.S. Circuit Court of Appeals recognized that the defendant’s 25-year sentence “is a long sentence for a white-collar crime, longer than the sentences routinely imposed by many states for violent crimes, including murder, or other serious crimes such as serial child molestation.” The court made the chilling observation that “under the guidelines, it may well be that all but the most trivial frauds in publicly traded companies may trigger sentences amounting to life imprisonment.” Id. In addition, Adelphia Communications Corp. founder John Rigas and his son, Timothy Rigas, were sentenced to 15 and 20 years, respectively. Ex-Tyco International Ltd. Chief Executive Officer Dennis Kozlowski was sentenced to up to 25 years, as was former Chief Financial Officer Mark Swartz. In contrast, a 34-year-old Japanese Internet tycoon found guilty of violating securities laws in an alleged multimillion-dollar scheme recently received a sentence of 2 1/2 years. See Norimitsu Onishi, “Ex-Internet Tycoon in Japan Guilty of Fraud,” N.Y. Times, March 16, 2007, at C2. The threat of such sentences gives prosecutors extraordinary leverage in negotiating plea bargains and other concessions from individuals facing indictment. The recent forced resignation of eight U.S. attorneys is a stark reminder that prosecutors hold political positions. The specter of a former senior aide to the attorney general asserting her privilege against self-incrimination when the very matter at issue is whether politics improperly drove the dismissal of these prosecutors raises at the least an uncomfortable negative inference. Of course, charges that the process has been improperly politicized are nothing new. When Janet Reno as attorney general announced the summary dismissal of all U.S. attorneys at the beginning of the Clinton administration, the New York Times lamented that “[a]ny hope that the Clinton administration would operate a Justice Department free of political taint � or even the appearance of political taint � grew dim.” See Editorial, “Backsliding at the White House; Justice Disrupted,” N.Y. Times, March 26, 1993, at A28. This crucial point � that appearances are important in a legal system that derives its credibility from the presumed neutrality and fairness of the grand jury and prosecutor � applies today with even greater force. Former U.S. Attorney Mary Jo White recently dubbed the U.S. District Court for the Southern District of New York the “sovereign district of New York” � an apparent assertion of the independence exhibited by that district. See Adam Liptak, “For Federal Prosecutors, Politics Is Ever-Present,” N.Y. Times, March 18, 2007, Section 4. Yet despite the heightened deference owed to that institution, it is not insulated from the risk of making a wrong call. Indeed, U.S. attorneys in the Southern District were recently castigated for placing unconstitutional burdens on the rights of criminal defendants by cutting off their access to legal fees, and also for misrepresenting the facts in the government’s defense of that allegation. See U.S. v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006). Really being untouchable and unreachable are virtues, but insularity, arrogance and unaccountability are not. In U.S. v. Thompson, No. 06-3676, slip op. (7th Cir. April 20, 2007), the 7th Circuit reversed the conviction of a longtime Wisconsin public servant in a case that casts a spotlight on our charging process. Georgia Thompson had been convicted under the federal mail fraud statute for depriving Wisconsin of her “honest services.” The prosecutor’s theory was that she assisted in steering a public contract to a particular company, the owners of which had made lawful campaign contributions to Wisconsin’s governor. No evidence was presented that Thompson “knew or cared about” these contributions, or that the government contract at issue had been awarded for improper political reasons. Thompson was nonetheless prosecuted on the theory that she had procured a “private gain” � a $1,000 annual pay raise that had been approved by Wisconsin’s normal civil-service processes, and additional job security. Thompson was convicted weeks before Wisconsin’s 2006 gubernatorial election, and her conviction figured prominently in campaign ads by the incumbent governor’s opponents. Adam Cohen, “A Woman Wrongly Convicted and a U.S. Attorney Who Kept His Job,” N.Y. Times, April 16, 2007, at A18. In its opinion reversing the conviction, the court observed: “Courts can curtail some effects of statutory ambiguity but cannot deal with the source. This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions. Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch.” Events such as this have led to the public perception of a growing “sour spot” in our criminal justice system: The public’s trust in the system � the primary basis for its effectiveness and legitimacy � is eroding. It is difficult to be both a hunter and at the same time the warden who determines what may be killed. Yet despite massive increases in the power of the federal prosecutor over the last century, the indicting grand jury has changed little, such that “[a]n attorney familiar with grand jury practice in the early federal courts would notice relatively few changes in the operation of the indicting grand jury.” Beale, Grand Jury Law and Practice, supra at 1:6. A magisterial review board The inherent tension between the prosecutor’s magisterial role and the temptation to engage in politics and self-promotion argues for safeguards to protect the integrity of the charging process. What may be considered is the creation of a dedicated magisterial review board composed of individuals who are trained and sworn to conduct independent reviews of charging decisions by prosecutors. When a prospective defendant has satisfied a relatively modest showing of reviewability, he or she could have the right to demand that such a review board examine the evidence, evaluate the soundness and fairness of the prosecutor’s decision to seek an indictment, and determine whether the charges should be allowed to proceed. This board would be composed of professionals with no stake at all in the outcome of the charging process, whose basic function would be to ensure that prosecutorial discretion is exercised legitimately and fairly, and not simply with the goals of winning cases or advancing personal or political agendas. Such a body could be developed within the U.S. Department of Justice or state attorney generals’ offices, similar to inspectors general. While such a review board could not be used to override or replace a grand jury, precharge review by the board would lend particular legitimacy to prosecutions for alleged financial crimes, political corruption, civil rights violations and other matters that may be expected to generate a significant amount of public agitation and uncertainty. Significantly, review would not be limited to whether the bare legal minimum of evidence has been amassed to charge a crime, for as Jackson recognized: “[w]ith the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” The Federal Prosecutor, supra, at 19. And as the Supreme Court has observed, there is a strong need for the government to give “full consideration to the desirability of not prosecuting in particular cases,” in light of the “awesome consequences” that flow from the filing of criminal charges. U.S. v. Lavasco, 431 U.S. 783, 794 (1977). Instead, this body would operate with a higher goal, considering whether proposed charges reflect a humane and socially productive judgment, consistent with the values that gave rise to the grand jury’s powers in the first instance. Such a reviewing body would have the benefit of side-stepping the routine obstacles to grand jury reform. Many proposals for reform constitute an effort to inject defense lawyers into the grand jury process, or to subject the grand jury to watered-down adversarial aspects of the trial. See, e.g., Model Grand Jury Act 200(2) & 201(2) (1982); Peter Arnella, “Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication,” 78 Mich. L. Rev. 463, 488-89, 580-81 (1980). But such proposals are alien to the traditions and history of the grand jury, which call for flexibility and confidentiality. Moreover, judicial hesitancy to such proposals has focused upon the hard costs and inefficiencies that would flow from making the grand jury process similar to a mini-trial. See U.S. v. Williams, 504 U.S. 36 (1992) (holding that there exists no obligation for a prosecutor to present exculpatory evidence to grand jury); Costello v. U.S., 350 U.S. 359 (1956) (declining to enforce hearsay rule in grand jury proceedings). A dedicated review process would pose none of these problems. It would impose no additional evidentiary requirements, and would not cabin the prosecutor in presenting his case in any respect. Nor would it require significant judicial supervision. Instead, the board would review the results of the investigation, and make an independent assessment of whether charges should be sought. In this way the hunter’s role would be separated � not entirely, but meaningfully � from he who determines who should be killed. There is no question that an additional layer of review such as the proposed magisterial system has potential flaws and risks of abuse. Moreover, we have to acknowledge that the great run of cases are not close ones, at least from the standpoint of determining whether mere probable cause exists or charges are justified. And even in these cases there almost always is at least the ceremony of attempting to talk a prosecutor out of a charge � either by seeking a reduction in charges, a deal involving a better charge, or simply through cooperation. But particularly with regard to non-biblical kinds of crimes, such as those involving the not infrequently muddy corpus delicti of alleged financial impropriety or corruption, our system should seek additional means, such as a form of magisterial review, to better assure less arbitrariness in the all-important charging process. Stanley S. Arkin is the senior partner at Arkin Kaplan Rice of New York. He specializes in complex corporate litigation and negotiations and white-collar criminal defense. The firm is involved in representations that involve issues discussed in this article, including its representation of Jeffrey Eischeid in U.S. v. Stein , No. 05 Crim. 0888, No. 06 Civ. 5007.

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