The curious, mysterious, obsolete, and dangerous federal grand jury
07 October 2010
By Bernardine Dohrn
I was subpoenaed to a federal grand jury in May of 1982 in New York
City. It has left me as something of a specialist in an arcane,
secretive, and obsolete area of the law -- one that has just
reappeared with FBI raids, seizures of private papers, computers, and
subpoenas to compel testimony in Chicago, Minneapolis, and other
cities across the country.
At the time of my subpoena, our sons were just five, two, and one. My
five year old accompanied me to federal court that day and waved
goodbye when the judge rejected my arguments, declared me in civil
contempt, and sent me directly to federal jail. My sons visited
weekly, brought separately by steady friends.
With the oldest, he sat on my lap while we did crossword puzzles,
made calendars, and read books, and then he hugged goodbye after each
visit, went outside and stood on the street corner downstairs
signaling until I flashed the lights from my cell.
My middle child came into the visiting room, jumped up and cuddled in
my arms, and directly went to sleep during his weekly visits, while I
breathed in the sweetness of his breath, his hair, his skin. I tried
to send him homemade, hopeful weekly cards.
The youngest was struggling to make nonverbal sense of his losses. I
tried not to ask him for anything, but to play toddler games and to
be fully present to him as much as I could in those cold circumstances.
My decision not to provide samples of my handwriting to the grand
jury -- even though the FBI and federal government admittedly had
possession of boxes of my handwriting -- was the most difficult
decision of my life. I spent more than seven months in the federal
correctional facility, not charged with any crime, allegedly not
being punished (according to the judge), but rather being compelled
to testify, and not knowing when, if ever, I would be released or if
I might even be indicted.
When the same judge who had held me in contempt released me, he
instructed the federal prosecutor to utilize the handwritten letters
I was repeatedly submitting to him about dangerous jail conditions.
He ruled that I was exceedingly stubborn, and that further
incarceration would not change my recalcitrant mind and therefore
holding me any longer had moved from coercion to punishment.
The federal grand jury is a secret, coercive fishing expedition, a
rubber stamp and tool solely of the prosecutor. Although it was once
(at the time of the Magna Carta) a check on the singular and
arbitrary power of the king, it has become its opposite: a greatly
enhanced power of the executive.
It has been abolished in England, virtually everywhere else in the
world, and in more than half of the states in the U.S. It embodies
fundamental violations of basic rights, and it is not necessary to
the investigation and prosecution of crime.
The grand jury is mentioned in the Constitution's Fifth Amendment:
"No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury."
Inside the grand jury room, there is no judge. The person compelled
to appear cannot testify with her or his lawyer present, and cannot
have a transcript of the proceedings. The grand jurors are sworn to
secrecy. The prosecutor -- alone -- decides who and what to subpoena
(testimony, records, computers, letters, photos), what possible
crimes to investigate, who will testify, who gets immunity, and what
charges to bring. It is famously said that any competent prosecutor
can "get a grand jury to indict a ham sandwich."
Here are 10 key and surprising elements of the federal grand jury:
It grants sweeping subpoena powers to prosecutors alone, with no
safeguards or checks and balances.
Prosecutors can use a grand jury to conduct an inquisitorial
investigation or fishing expedition where there is not sufficient
evidence of a crime.
Defense counsel is barred from the grand jury, and no judge is present.
It is not open to outsiders.
Grand jurors hear one side only; prosecutors draft and read the
charges to the grand jurors who are not instructed on the law, or
screened for bias.
Grand jury proceedings are secret.
A grand jury subpoena compels a witness to testify under threat of an
indefinite jail sentence until compliance; this coercion promotes
There is no way to know what the grand jury investigation is about or
who is considered a target.
Grand juries subvert the Fourth Amendment to the U.S. Constitution
(ban on unreasonable state seizure of private property).
Grand juries subvert the Fifth Amendment to the Constitution (ban on
compulsory examination under oath).
It is no wonder that former judges and prosecutors, as well as legal
scholars and organizations, call for reforms or abolition of the
federal grand jury system.
Some will recall that during the Clinton administration, Monica
Lewinsky's mother was subpoenaed to a federal grand jury and
compelled to testify about her daughter's sexual relationships.
Some remember the wave of resistance to federal grand juries during
the Nixon administration under Attorney General John Mitchell,
against the antiwar movement, anti-racist solidarity activists, and
the organizing work of Vietnam veterans who returned to tell the
truth. A smaller number recall its use during the McCarthy era witch
hunts of the 1950s. Recently, the environmental movement has been
targeted by grand juries.
Today's raids and subpoenas allegedly concern investigations into the
sweeping and vague prohibitions of "material aid" to entities that
the U.S. has deemed terrorist organizations. This federal legislation
has been interpreted so broadly by the courts as to amount to a ban
on peaceful opposition to U.S. wars, occupations, aerial bombings,
and support for state terror.
Popular education about the realities and curiosities of federal
grand juries is, again, urgently on the agenda.
[Bernardine Dohrn is Clinical Associate Professor of Law and Director
and founder of the Children and Family Justice Center at Northwestern
University. She and her husband Bill Ayers were leaders in SDS and
the New Left, and were founders of Weatherman and the Weather Underground.]