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Facing a legal challenge by the Washington, D.C., Public Defender Service (PDS), U.S. Attorney Wilma Lewis has agreed to back off from using one of her office’s key investigative tools. Lewis said in court papers last week that prosecutors will no longer require crime witnesses to be questioned privately by the government prior to testifying before Washington, D.C., Superior Court grand juries. The surprising move comes after six weeks of behind-the-scenes feuding between the PDS and prosecutors over what defense lawyers say is a government attempt to intimidate witnesses. Prosecutors, however, say such interviews are often essential to solving crimes. The dispute was prompted by a motion filed by PDS lawyers requesting that Superior Court Chief Judge Rufus King III throw out a subpoena aimed at one of their clients who was summoned seven times over the course of two weeks in connection with a murder investigation. Each time the 15-year-old girl complied with the subpoena, she was interviewed for hours by a prosecutor and homicide detectives but never presented to the grand jury, according to the motion. PDS Director Cynthia Jones says the government’s actions cross the line. “It is very unfortunate what happened to our client in this case,” Jones says. “It’s particularly egregious when there’s very clear binding precedent in this jurisdiction preventing the U.S. attorney’s office from doing this very thing.” Prosecutors frequently interview witnesses before putting them in front of the grand jury, seeking to both familiarize witnesses with the process and find out what they have to offer. “I don’t think there’s anything wrong with interviewing them before they go before the grand jury,” says one former prosecutor, who asked not to be named. “People get subpoenaed with good intentions, then we find out that they don’t know anything and we don’t want them before the grand jury.” But the PDS claims that assistant U.S. attorneys have been abusing the grand jury system by using criminally enforceable subpoenas as an interrogation tactic — essentially forcing witnesses to come to their offices with no intention of having them testify that day before the grand jury. The matter is further complicated by the location of the Superior Court grand jury, which is in the same building that houses the U.S. attorney’s office. In a brief filed Dec. 6, Mary Incontro, chief of the Superior Court branch in the U.S. attorney’s office, defended the prosecutor’s actions in the PDS case but said the government would discontinue the practice anyway. “We admit that it has become fairly routine over the years to request, on the face of a subpoena, that a witness appear in a particular prosecutor’s office prior to a grand jury appearance,” Incontro wrote. “[W]e no longer counsel that practice.” The government’s brief, which asks Chief Judge King to dismiss the PDS motion, says the U.S. attorney’s office will now instruct and require prosecutors to meet witnesses at the grand jury location, not at their offices. The government also recommends changing the language of subpoenas to let witnesses know they don’t have to talk to prosecutors outside of the grand jury room. Channing Phillips, the spokesman for U.S. Attorney Lewis, declines to comment, saying the matter is still being litigated and most of the case is under seal. WITNESS X The case in which the PDS raised the issue involves the investigation of a murder in Northwest Washington in late summer. The teen-age girl, known as T.J. or Witness X in court papers, was identified by homicide detectives as having some knowledge of the crime. Assistant U.S. Attorney Jay Bratt subpoenaed T.J. on Sept. 26 to appear before the grand jury that morning. The subpoena told her to report to the 9th floor of 555 Fourth St., N.W. — which includes the offices of the community prosecution section of the U.S. attorney’s office. The grand jury rooms are on the second floor of 555 Fourth St. T.J. was escorted to Bratt’s office and interviewed for several hours by Bratt and Washington, D.C., homicide detectives. T.J. told Bratt and the detectives that she didn’t know anything about the murder, according to the PDS motion. When she was released that day, Bratt subpoenaed her again — a total of seven times over two weeks. The PDS motion also says Bratt and the detectives told T.J. that she was lying and could face 10 years in prison if she perjured herself before the grand jury. T.J.’s mother accompanied her on three of the interviews, but wasn’t allowed in the room when T.J. was interviewed, according to the PDS brief. She asked Bratt whether she should get a lawyer for her daughter; the prosecutor said it would be a waste of money, PDS claims. When T.J. was subpoenaed a seventh time, T.J.’s mother called the PDS, which moved to quash the summons. PDS attorneys argue that Bratt abused the grand jury process by using subpoenas to interrogate T.J., although he had no intention of having her testify that day. They cite a 1954 opinion from the U.S. Circuit Court of Appeals for the D.C. Circuit as proof that this practice is improper. In the 1954 case, the appeals court threw out the conviction of Andrew Durbin, who had been prosecuted for leaving the Washington, D.C., area while under a grand jury subpoena. The appeals court noted, however, that Durbin had been subpoenaed four times before — each time, he had been interviewed but never placed before the grand jury. Writing for the court, Judge David Bazelon accused the prosecutor of misusing the grand jury subpoena “for the purpose of conducting his own inquisition.” PDS lawyers in their motion pointed to seven grand jury subpoenas from other cases in which witnesses were directed to prosecutors’ offices rather than the grand jury rooms. Under the words “You Are Hereby Commanded,” prosecutors had written their office or floor number as the location where witnesses were to report. “It has been the practice in that office to subpoena people to their office under the auspices of the grand jury,” says Jaclyn Frankfurt, the PDS staff attorney working on the T.J. case. The PDS also refers to Justice Department guidelines: “Neither the U.S. Attorney or his/her assistants are empowered to issue subpoenas directing witnesses to appear at the U.S. Attorney’s Office.” The language, on its face, is clear; in practice, it is fuzzier, say current and former prosecutors in the District. One prosecutor, who used to work in the homicide division, says he would routinely subpoena witnesses to his office in an effort to build a case — which, in the District, is almost always compromised by shoddy police work and uncooperative witnesses, he says. “The problem is, we get these people who are questionable when we bring them in,” says this prosecutor, who asked not to be named. “The first time, they’ll say, ‘I don’t know anything.’ If we think they’ll tell us more, then we tell them that we’ll keep bringing them down until they tell the truth. If it gets better, then we’ll turn them over to the grand jury. “I don’t know if the Justice guidelines contemplated these types of witnesses and these types of investigations,” the prosecutor says. GETTING A WITNESS READY In the government’s brief, Incontro notes that the Justice Department also recommends that prosecutors interview witnesses before testifying — a process that sometimes takes several trips to the U.S. attorney’s office. “A witness’s fear of retaliation or of ‘getting involved’ seriously hampers our ability to present meaningful information to the grand jury based on a single contact with the witness,” Incontro states. “Admittedly, six or more office interviews, on first blush, might appear excessive to someone unfamiliar with the investigation. “In an investigation such as this one of an extremely violent crime, the stakes of cooperation are high and witnesses know it,” Incontro wrote. Senior Judge Eugene Hamilton, who presided over the grand jury process when he was chief judge, says he was not aware of any grand jury abuses during his tenure, but notes that there is a fine line between interview and interrogation. “It’s a very delicate situation, what the U.S. attorney does,” Hamilton says. “I’ve always been under the assumption that the discussions between the U.S. attorney and the person who has been subpoenaed is strictly preliminary and not used for extensive and repeated interrogations of a witness subpoenaed by the grand jury.” Samuel Harahan, executive director of the Council for Court Excellence, says his group has been studying the grand jury process for nearly a year and that one of its recommendations will be to move the grand jury out of the U.S. attorney’s building. Harahan notes: “Steps need to be taken to further the independence of the grand jury.”

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