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In a decision that is drawing notice throughout the criminal defense bar, the U.S. Court of Appeals for the D.C. Circuit recently held that grand jury witnesses are entitled to review their testimony in ongoing investigations. Defense attorneys characterize the ruling as among the most significant grand jury reforms in recent memory, one that could induce more witnesses to testify, eliminate misstatements that lead to perjury charges, and curb prosecutorial overreaching. The government, which is considering asking the court to review the decision en banc, argues that allowing witnesses to review their testimony will encourage information sharing among co-defendants and their attorneys, making it easier for them to derail investigations, particularly in sweeping white-collar and racketeering cases. “I think prosecutors are going to be concerned that in certain cases this could lead to the target of the investigation finding out more about the case, but it just levels the playing field,” says Solomon Wisenberg, the former assistant U.S. attorney who handled the grand jury questioning of President Bill Clinton in 1998. The secrecy of the federal grand jury has been stubbornly preserved. Defense attorneys are barred from the proceedings, and grand jurors are instructed not to discuss the investigation. Until the D.C. Circuit ruling, transcripts were available for review only after the investigation, except in rare circumstances. Other federal appeals courts have addressed the issue in the past, and at least one has ruled that witnesses can review transcripts of their testimony in certain circumstances, but the D.C. Circuit is the first to mandate a witness’s unqualified right to do so. “We hold that grand jury witnesses are entitled to review the transcripts of their own testimony in private at the U.S. Attorney’s Office or a place agreed to by the parties or designated by the district court,” wrote D.C. Circuit Judges Judith Rogers and Brett Kavanaugh and Senior Judge Harry Edwards in their 21-page per curiam opinion. Justice Department spokesman Dean Boyd says officials are still debating whether to ask the full court to review the decision. DID YOU SHOOT JIMMY HOFFA? The D.C. Circuit’s June 22nd ruling arrived on tiptoe — at least in part because it was derived from a grand jury question. The original case was sealed in the U.S. District Court for the District of Columbia, and the attorneys’ names were stricken from the opinion. The court, in its opinion, supplied only the barest outline of the case: In the course of a criminal investigation of a company, prosecutors had subpoenaed two employees to appear before a grand jury on multiple occasions. After testifying three times, one employee asked to review his previous testimony before appearing a fourth time. The other employee, having testified once, requested the transcripts of her testimony before appearing on a second occasion. The government declined. The employees each filed motions in district court to compel disclosure. Chief Judge Thomas Hogan denied both, and the employees appealed. The appeals court took a pass on several issues that have doomed similar motions in other jurisdictions — whether witnesses can make copies of or take notes from their transcripts and whether attorneys can accompany witnesses to review the transcripts — leaving those for the trial court to decide. Congress and the courts have tweaked the grand jury formula over the years, but big changes have been slow to come, if they came at all. For example, it wasn’t until 1979 that proceedings had to be recorded and transcribed. Grand jury reform has proven a subtle undertaking. Only one other federal appellate court has ruled that grand jury witnesses have a right to copies of their testimony. In 1972 the U.S. Court of Appeals for the 9th Circuit ruled that witnesses and their attorneys could obtain copies of their testimony transcripts if they could show they had a compelling need that outweighed the interest of secrecy. At least four other federal circuit courts — the 1st, 4th, 5th and 7th — have ruled that grand jury witnesses have no right to request copies of transcripts. The D.C. Circuit, in balking on the copy question, held that “denying witnesses access to their own transcripts to help prevent witnesses from talking to others makes little sense to begin with — and makes even less sense given that grand jury witnesses are under no obligation of secrecy.” Defense attorneys, forced to the rim of the grand jury process, often grumble about having to rely on the imperfect recollection of their client. As one attorney describes it, debriefing a client who has just testified before a federal grand jury is like wringing out a dishrag. “Everybody is different in how they remember things,” says Patton Boggs partner Richard Luskin. “With some, you say �Tell me what happened’ and they spit out this sequential narrative. With other people, you’re in orbit. You go around and around, and eventually they say, “Oh yeah, he did ask me if I shot Jimmy Hoffa.’” Adds former Assistant U.S. Attorney Cary Feldman of Feldesman Tucker Leifer Fidell, “Trying to understand what your client said in the grand jury has always been a hit-and-miss operation.” DISMANTLING THE PERJURY TRAP Defense attorneys agree that the ruling is a victory for their cause, but they say that, for the most part, it only adds balance to a system that naturally favors the prosecutor. “In practical terms, in the typical white-collar case, when you have a group of lawyers who are cooperating and sharing grand jury debriefs, there’s no doubt that this will be of major assistance to the defense,” says Luskin. But he calls the ruling “manifestly right,” saying it places the witness and the prosecutor on near-equal footing. The decision, while broad in effect, homed in on a small population of grand jury witnesses: the ones who are called to testify more than once. Luskin says he’s represented very few repeat witnesses, but there’s one in particular who might have benefited from the ruling, though Luskin refuses to speculate on what might have been. White House adviser Karl Rove, whom Luskin represented in the Valerie Plame CIA leak case, testified before a grand jury five times between October 2004 and April 2006. “One kind of unforeseen advantage [for the government] is that witnesses like Rove, who are disposed to cooperate with a grand jury, will be far more likely to do so if they have a right to review their testimony contemporaneously,” he says. Others are more pointed when discussing the phenomenon of repeat witnesses. “They come out of that room and they look harried and upset, and there’s nothing we can do about it,” says DLA Piper partner Nancy Luque. “When they call the witnesses in so many times, they’re trying to get them to change their stories. It’s such a perjury trap. And it’s abusive.” Supporters of former vice presidential aide I. Lewis “Scooter” Libby Jr., who testified before a grand jury twice in the Plame case and was eventually convicted of perjury, say he was the victim of a “perjury trap.” Prosecutors, however, maintain that the supposed “perjury trap” is a myth, because no one forces witnesses to lie. At most, lawyers say the D.C. Circuit’s ruling will guard against human error. “A person can create their own perjury trap, because memories are fallible,” says Jack King, a staff attorney and communications director for the National Association of Criminal Defense Lawyers. “It’s not designed to protect prevarication under oath; [the D.C. Circuit ruling] is designed to protect the innocent.”
Joe Palazzolo can be contacted at [email protected].

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