Lawyers, Guns, and Money by Warren Zevon
Author’s Note: I published this at Firedoglake/MyFDL on October 6, 2010 just after people, who had protested at the Republican National Convention in Minneapolis in 2008, were subpoenaed to testify before a federal grand jury in Chicago investigating them to determine if they had provided material support to terrorists and/or a terrorist group.
I am reposting it here a little over a year later because I suspect it may be useful information to some of our readers, especially those in the Occupy Everywhere movement.
I was a criminal defense lawyer for 30 years and a law professor for 3 years. I represented many clients over the years in federal court, so I have a lot of experience representing people subpoenaed to appear before a grand jury.
State grand juries generally work the same way but are significantly less often used aggressively as federal prosecutors typically use them.
A grand jury consists of 17 to 23 citizens who generally meet once per week for a term of 18 months to hear witness testimony, review documentary evidence, and vote on issuing indictments, which is the formal legal term for the government’s charging document in a criminal case. The indictment lists the defendant(s) and each charge is set out separately in what lawyers refer to as counts identifying the criminal statute alleged to have been violated, the name(s) of the defendant(s) who is alleged to have violated the statute, the on-or-about date of the offense, and a very short description of the act that is alleged to constitute the crime.
Pursuant to the Fifth Amendment, all federal felony prosecutions must be by grand jury indictment, unless the defendant waives his right to be prosecuted by indictment and agrees to be prosecuted by information. This means federal prosecutors present their cases to a grand jury together with the indictment and ask the grand jury to review and approve the indictment.
The members of the grand jury vote on whether the government has presented sufficient evidence to establish probable cause that the defendant(s) committed the crime(s) charged in each count of the indictment. Twelve members must vote to approve the indictment, and if that happens, the foreperson of the grand jury signs and returns, or hands down the indictment, which is filed in the District Court Clerk’s Office. Grand juries rarely ever refuse to indict.
Grand juries meet in secret and its members take an oath never to discuss what happens inside the grand jury room. The only other people present in the room when the grand jury is in session are a court reporter who transcribes the proceedings, a federal prosecutor who presents the government’s case, the case agent who is the law enforcement officer in charge of the investigation, and the witness who is testifying. Witnesses may appear with counsel, but their attorney must wait outside the grand jury room while the witness is testifying. The witness must answer all questions truthfully under penalty of perjury. The witness can request a recess in response to a question in order to consult with counsel outside the grand jury room. The witness may refuse to answer any question on the ground that a truthful answer might tend to incriminate the witness, or lead to the discovery of evidence that might tend to incriminate the witness. Since the Fifth Amendment protects this privilege to refuse to answer, no witness can be punished for refusing to answer a question on the basis of asserting the Fifth Amendment. Properly subpoenaed witnesses who refuse to appear before the grand jury, or who appear but refuse to answer questions without asserting the Fifth Amendment, may be held in contempt of the grand jury and jailed until such time as they agree to answer the question, or the grand jury term expires, whichever happens first.
Let’s say Sally Jones is subpoenaed to testify before the grand jury on November 19, 2010. She contacts a lawyer and retains him to represent her. What does the lawyer do?
The lawyer contacts the federal prosecutor and asks her whether his client is a target, subject, or witness. Targets are people whom the prosecutor intends to charge in the indictment. Subjects are people whom the prosecutor might charge, but would prefer to use to strengthen the government’s case against the target(s). By use, I mean to testify against the target(s) at the grand jury and at the subsequent trial, if the target refuses to plead guilty and insists on going to trial. Witnesses have no potential exposure to liability in the underlying case.
If the prosecutor tells the attorney that the client is a target, the attorney tells the prosecutor that his client will be taking the Fifth to all questions and requests that his client be excused or released from the subpoena. Prosecutors usually agree to the request as there is no reason to have the target come in and refuse to answer questions. That would waste everyone’s time and a refusal to answer questions cannot be held against the witness who asserts the privilege. In other words, the grand jury cannot consider a witness’s refusal to answer as evidence of guilt.
If the prosecutor tells the attorney that the client is a subject, the attorney will typically respond by asking the prosecutor what he wants in exchange for immunity. What does this mean?
As is the case with the target, the subject also can assert the Fifth and refuse to answer questions. There is an exception, however, and it’s called immunity. In other words, the prosecutor promises not to charge the subject with any crime based on the answers provided by the subject, unless the subject lies, in which case the prosecutor reserves the right to prosecute the subject for perjury. Once immunized, the subject no longer can assert the Fifth Amendment because her answers no longer have the potential of incriminating her, due to the immunity promise. Therefore, the witness has to answer, or be held in contempt for refusing to answer. As I said previously, that means she goes to jail and stays there until she answers or the grand jury term expires, whichever happens first. This is a tough situation to be in.
Usually a prosecutor wants some blood too and insists on the client pleading guilty to some offense that will involve some prison time. Welcome to the let’s-make-a-deal game, or plea bargaining. The prosecutor’s offer will typically be contingent on reviewing a proffer of what the client would say regarding her involvement in the crime(s) that the prosecutor is investigating. The proffer is initially provided by the client’s attorney in a rough summary form. That is usually followed up by a meeting with the prosecutor and the case agent at the prosecutor’s office. Attorney and client show up at the appointed hour. They review and sign a document that exempts their discussions and the information that the client is about to reveal from being used against the client in the future, unless the client lies, or blurts out a confession to some other crime for which she is not being investigated such as a murder, for example. Sometimes the client will be required to submit to a polygraph, although that is a relatively rare event. Then the negotiations begin in earnest. Eventually, an agreement will be reached, or the talks will break down and the client will be indicted along with the target(s) or forced to sit out the grand jury term in jail for contempt in refusing to answer.
What about the antiwar protesters in Minneapolis and Chicago who have been subpoenaed to appear and testify before the grand jury investigating potential violations of the laws prohibiting terrorism or materially contributing to terrorism?
Each person needs to consult with counsel and hopefully lawyers will come to their assistance and provide representation on a pro bono basis, because this looks like a political prosecution and fishing expedition to intimidate people exercising their constitutional right to dissent from government policy. There probably aren’t any targets at this point. Targets obviously should take the Fifth. There may not even be any subjects. Whatever the case may be, anyone who has any potential exposure should seriously consider refusing to answer questions on the ground that their answer might tend to incriminate them. The District Court Clerk’s Office will appoint counsel to represent anyone who cannot afford counsel.
No one has to explain why they believe their answer might tend to incriminate them because forcing them to answer in order to explain why they are asserting the privilege would defeat the purpose of the privilege, right? Y’all can see that, I hope. Nevertheless, refusing to answer a question like what’s your name, might reasonably be expected to cause a certain detectable level of unpleasantness that could morph into a go-to-jail card for contempt. That’s why it’s a good idea to have a lawyer to assist in negotiating potential troublesome areas where an assertion of the privilege might be legitimate but still create a problem if the expected answer would not reasonably be expected to reveal incriminating information.
I noticed in the piece that I read that people have announced that they are not going to appear in response to the subpoena. That could result and probably will result in the arrest of everyone who refuses to appear unless their appearance is excused ahead of time. This is another reason for everyone to get a lawyer as the lawyer may be able to convince the prosecutor that the client did not violate any law and doesn’t have any information that anyone else violated any laws.
The dangerous legal bramble bush in this case is the definition of what constitutes “material support” for terrorism. That is the danger zone for each witness because the prosecution and the defense probably will disagree as to what it means. The court will look at the statutory definition, but I believe there may still be a gray area where reasonable people might disagree regarding whether certain conduct constitutes material support. Ironically, this uncertainty should expand the scope of the Fifth Amendment privilege to cover any activity involving planning and organizing protests that might be construed as providing material support for terrorism. The First Amendment Freedom of Speech Clause also comes into play, so sorting this out may get a little dicey.
People who are offered immunity deals in exchange for cooperation and testimony will be in a tough spot because they have to answer questions or be held in contempt and go to jail. Some people may decide to do that on principle, but I urge people to withhold making a decision about that until they have consulted with counsel.
For all of these reasons, I strongly encourage everyone who has been subpoenaed to please consult with a lawyer before deciding on a course of action. Although I’ve packed lots of information in this diary, I haven’t covered everything by any means. I’ll try to answer questions in the comments. I encourage any lawyers who read this to please join the discussion and comment, as the spirit moves you.