I submit to you, as I do every year, what I would like to see occur in the courts, the government investigative agencies, and the law profession in the coming year.
My wish list includes:
That the Supreme Court of Pennsylvania adopt proposed changes due to be submitted by the Grand Jury Task Force, which was created to propose changes to the state grand jury procedure. I appeared as a witness before the task force and I am aware that the task force has also heard additional testimony and received numerous legal memos on the problem areas of the grand jury practice. I predict the upcoming proposed changes will be substantial and long overdue.
That the Pennsylvania Legislature will follow through with long overdue changes to the grand jury statute, which only the legislature can change. The senate judiciary committee received proposed changes over a year ago, but has held no hearings nor conducted any interviews.
That the U.S. Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) return to the organizational chart they followed for 50 years. Pursuant to the organizational procedure, the FBI and other agencies investigated allegations of unlawful activity and made their report to the attorneys in the DOJ or the U.S. Attorney’s Offices. The attorneys made the decision whether to charge someone criminally. In the summer of 2016, there was a political solar eclipse that disoriented perception of many public officials. James Comey, then the director of the FBI, took it upon himself to call a press conference to announce that he had decided that no prosecutor would bring criminal charges against Hillary Clinton for her activities regarding her email accounts. The trouble with this is that he was not the prosecutor. Loretta Lynch, Attorney General of the United States at that time, should have made that decision. Sadly, she did not. The actions of the director of the FBI and the Attorney General severely weakened the credibility of the department and gave impetus to the calls for special counsel. That the DOJ demonstrate that it has the capability to handle investigations of political figures of any political party. The government cannot resort to a special counsel every time there is an investigation of a public figure in any political party. Ours is a government of laws, and continued appointments of special counsel make it a government of men; a government of men to suit the partisan groups of such disputes. I suggest a practical solution. In the U.S. Attorney’s offices across the country, and in certain divisions of the office of main justice, there are numerous career prosecutors who investigate and prosecute complex criminal matters every day. The Attorney General and Deputy Attorney General should select a group of these persons from which a prosecution team will be formed to handle allegations such as those concerning Hillary Clinton. The investigators would be drawn from the regular investigative agencies of the United States; therefore, there would be no additional expenses incurred, such as retaining special counsel. If the prosecution team makes a recommendation for prosecution, it should be the responsibility of the Deputy Attorney General to decide whether or not to follow it. This is essential, as some identifiable official should make that call. Critics will complain that the final decision is really being made by someone appointed by the party in power; however, the investigative report will be public, and observers can decide if the decision was meritorious. I suggest that the Deputy Attorney General make the decision, as the selections of the Deputy Attorney General are usually persons who are appointed for their legal and administrative skills to run the department, not a politically prominent person.
That PACDL create an annual award in the name of John Rogers Carroll, a great defense lawyer who died on Jan. 3. Carroll defended many an unpopular cause and should be honored by those who follow in his footsteps.
That the three federal court districts in Pennsylvania consider adopting a local criminal rule, similar to one being considered by the District of Columbia, expanding the definition of “Brady” material that should be provided to defense counsel by federal prosecutors. This proposed rule would require the prosecution to disclose all information “favorable to an accused” that is “material to either guilt or punishment” under Brady v. Maryland, 373 U.S. 83, (1963). This is particularly significant in the sentencing phase. Nearly 90 percent of federal criminal cases result in guilty pleas; of those that go to trial, nearly the same percent result in guilty verdicts. Factual determinations weigh heavily in the calculation of the sentencing guidelines where role in the offense or amount of monetary loss, as well as other issues, can drastically affect the sentencing.
That the Congress and the DOJ conduct an audit of the Federal Sentencing Commission to evaluate its purpose and determine if it should be reduced in size. The Federal Sentencing Commission was created to bring uniformity to federal sentencing by adopting sentencing guidelines. The late Justice Antonin Scalia became a severe critic of the guidelines and, as result of his powerful opinions, the Supreme Court has made the guidelines advisory and Judges are free to decline to follow them. The Federal Sentencing Commission has 92 employees and an annual budget of over $17 million. An audit would disclose what the Federal Sentencing Commission really does, whether it should cost $17 million to operate, if the guidelines in their present form are worthwhile, and if the reports issued by the commission are useful.
Peter F. Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at email@example.com.