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Independent counsel Kenneth W. Starr on the grand jury: "These are citizens from the District of Columbia who are working very hard." (AP)

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Related Links
_ A Bland Old Time Outside the Starr Jury (Washington Post, April 9)

_ How the Grand Jury Process Works (Washington Post, Jan. 29)

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Grand Jury: Sword, Shield or Rubber Stamp?

By Lena H. Sun
Washington Post Staff Writer
Thursday, April 9, 1998; Page A21

For nearly a year, the 23 members of Grand Jury 97-2 -- ordinary D.C. residents plucked from voter rolls and motor vehicle records -- have been trooping downtown to the E. Barrett Prettyman Courthouse to hear evidence presented by independent counsel Kenneth W. Starr.

In a small, windowless room with dark pink carpet on the third floor of the federal court building, the grand jurors have met two or three times a week to hear secret testimony in Starr's investigation of President Clinton. Starting 10 weeks ago, their main concern has been the sensational allegations surrounding the Monica S. Lewinsky matter: whether Clinton had an affair with the former White House intern and urged her to lie about it in sworn testimony.

Starr himself has recognized the grand jurors' important role in his investigation. "These are citizens from the District of Columbia who are working very hard," Starr told reporters last week. "They want information; they want evidence and the like."

Their proceedings and their identities are secret. But the intense media coverage of the Lewinsky investigation has focused attention on the broad powers granted to the federal grand jury.

Dating to medieval England, the grand jury originally had two functions: to prevent citizens from unjust prosecution by the English crown and to hear prosecutors' evidence accusing people of crimes.

"It's the image of the shield and sword," said Sara Sun Beale, a Duke University law professor and co-author of a treatise on grand juries.

So important was its shield function that those protections were written into the Fifth Amendment of the U.S. Constitution. But legal experts say the federal grand jury today is often only a sword, acting as little more than a rubber stamp for prosecutors.

In grand jury proceedings, prosecutors can call any witness, and the witnesses usually must testify. Witnesses cannot bring their attorneys into the room. No judge oversees the proceedings. Grand jurors can question witnesses and often do. Prosecutors can also present hearsay and other evidence that is normally inadmissible in court, such as evidence that may have been obtained illegally.

A grand jury can indict a person if it finds "probable cause" to believe the person committed a crime, a lower standard than what is required for a criminal trial jury, whose duty is to determine the question of guilt "beyond a reasonable doubt."

Legal experts say it's very unusual for a grand jury not to return an indictment. The standard joke is that if a prosecutor asked, a grand jury would indict a ham sandwich.

"As we've seen in the Whitewater investigation, there is tremendous power arrayed against people who kind of get caught up in this," Beale said.

Still, legal experts and prosecutors say federal grand juries are essential to helping the government make complicated and sophisticated cases, such as those involving corruption, organized crime, and drug cartels, where witnesses are often reluctant to cooperate. "Part of the grand jury process is pretty important in bringing out the smoking gun," Beale said.

The downside, said former Iran-contra prosecutor Reid H. Weingarten, is that grand juries often "don't get the whole story." Government prosecutors can also be extremely aggressive, he said, issuing subpoenas, for example, that require witnesses to show up with no notice.

"I used to do this," said Weingarten, now in private practice. "The legitimate purpose was if you believed evidence was being destroyed or the statute of limitations was running out, or you feared a crime was about to be committed."

The result is that often, "witnesses are scared out of their pants," he said. "There are witnesses who are brought back [before the grand jury] six or seven times."

Take Marsha Scott, a longtime friend of Clinton's and chief of staff in the White House personnel office. She has testified seven times before various grand juries in Starr's long-running Whitewater investigation, including three times before the grand jury hearing the Lewinsky matter. "I think this whole process harasses people," Scott said as she left the courthouse last week.

The process can take a toll on grand jurors too. Most federal grand juries have 18-month terms, and some can be extended to two years. They usually meet twice a week when there are cases to be heard.

When Grand Jury 97-2 began hearing witnesses in the Lewinsky matter 10 weeks ago, it started out meeting three times a week until complaints from the jurors prompted a change last month to the current schedule: alternating two-day and three-day weeks. Starr last week noted that it was meeting more frequently than "any grand jury in the country."

Typically, federal grand juries have 23 members and need 16 for a quorum; only 12 are needed to return an indictment. In the District of Columbia, as many as eight separate grand juries are empaneled at any given time.

Court officials say about half of the questionnaires they send out to potential jurors are returned; to pick one grand jury, officials need a pool of "a few hundred," one official said. "We try to get a cross section of the community," said U.S. District Judge John Garrett Penn, who selected the grand juries as chief judge for more than five years. The chief judge also picks the foreman.

Chief U.S. District Judge Norma Holloway Johnson, who took over in 1997, likes to tell potential jurors that grand jury service is the most important contribution citizens can make -- second only to serving in the armed forces.

"If this was for three months, I'd grin and bear it," said one juror, who has been serving on a non-Whitewater federal grand jury for several months. "But 18 months, that's an unusual calling."

Jurors who aren't compensated by their employers receive $40 for each session and a $3 daily transportation fee. The members of Grand Jury 97-2 also get a perk not available to other grand juries: lunch is served to them every day, usually sandwiches.

The jurors sit in small rooms, sometimes on wooden pews. "The seats are very uncomfortable. . . . You're not doing anything, just listening all day, and some days I feel like I have to stick a pencil in my eye to stay awake," said the juror.

But sometimes, there is exciting testimony, recalled a retired government employee who served on a federal grand jury several years ago that investigated, among other cases, allegations that then-Rep. Dan Rostenkowski (D-Ill.) had exchanged stamps illegally for cash at the House Post Office. Rostenkowski, former chairman of the House Ways and Means Committee, was sentenced in 1996 to 17 months in jail and fined $100,000 for mail fraud.

One witness couldn't remember events from the previous day and was peppered with questions from skeptical jurors. "She had to be lying, because anybody could remember what they did the day before," the former juror recalled.

During his two years on the grand jury hearing 80 to 90 cases, the former juror said he remembered only once when the grand jury did not agree with the prosecutor. That case involved undercover agents recording conversations among vendors about the illegal sale of food stamps. But otherwise, he said, "I guess we felt we were on the prosecutor's team."

Prosecutors say they can often gauge the credibility of the witness by the jurors' questions. "If you have a controversial case that even technically may be a crime, you kind of want a feel for whether the jury feels we should be spending our time and resources on it," said one federal prosecutor. "After they've heard from a number of witnesses, they're pretty savvy. . . . The citizens of the city, they know what's going on."

© Copyright 1998 The Washington Post Company

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