New York State Chief Judge Sol Wachtler was famously quoted by Tom Wolfe in The Bonfire of the Vanities that;
|2 Pieces of Sliced Bread, Sliced ham|
|Cookbook:Ham sandwich Ham sandwich|
The most persistent criticism of grand juries is that jurors are not a representative sampling of the community, and are not qualified for jury service, in that they do not possess a satisfactory ability to ask pertinent questions, or sufficient understanding of local government and the concept of due process. Unlike potential jurors in regular trials, grand jurors are not screened for bias or other improper factors. They are rarely read any instruction on the law, as this is not a requirement; their job is only to judge on what the prosecutor produced. The prosecutor drafts the charges and decides which witnesses to call.
Limited constitutional rights
The prosecutor is not obliged to present evidence in favor of those being investigated.
Individuals subject to grand jury proceedings do not have a Sixth Amendment constitutionalright to counsel in the grand jury room, nor do they have a Sixth Amendment right toconfront and cross-examine witnesses. Additionally, individuals in grand jury proceedings can be charged with holding the court in contempt (punishable with incarceration for the remaining term of the grand jury) if they refuse to appear before the jury. Furthermore, all evidence is presented by a prosecutor in a cloak of secrecy, as the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury unless ordered to do so in a judicial proceeding.
In 1974 the Supreme Court of the United States held in U.S. v. Calandra that “theexclusionary rule in search-and-seizure cases does not apply to grand jury proceedings because the principal objective of the rule is ‘to deter future unlawful police conduct,’ [. . .] and ‘it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.’”  Illegally obtained evidence, therefore, is admissible in grand jury proceedings, and the Fourth Amendment‘s exclusionary rule does not apply.
After a grand jury was commissioned to investigate whistleblowers organization WikiLeaks, grand juries have been accused of being used as an intimidation and persecution mechanism against whistleblowers who have been accused of stealing classified information.
Rubber stamp for the prosecution
According to the American Bar Association (ABA), the grand jury has come under increasing criticism for being a mere “rubber stamp” for the prosecution without adequate procedural safeguards. Critics argue that the grand jury has largely lost its historic role as an independent bulwark protecting citizens from unfounded accusations by the government.Grand juries provide little protection to accused suspects and are much more useful to prosecutors. Grand juries have such broad subpoena power that they can investigate alleged crimes very thoroughly and often assist the prosecutor in his job. Grand juries sometimes compel witnesses to testify without the presence of their attorneys. Evidence uncovered during the grand jury investigation can be used by the prosecutor in a later trial. Grand jurors also often lack the ability and knowledge to judge sophisticated cases and complicated federal laws. This puts them at the mercy of very well trained and experienced federal prosecutors. Grand jurors often hear only the prosecutor’s side of the case and are usually persuaded by them. Grand juries almost always indict people on the prosecutor’s recommendation. A chief judge of New York State’s highest court, Sol Wachtler, once said that grand juries were so pliable that a prosecutor could get a grand jury to “indict a ham sandwich.” And William J. Campbell, a former federal district judge in Chicago, noted: “[T]oday, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”
Reform of federal grand jury system
- Better instructions from judges to jurors about the grand jury’s powers and its independence from prosecutors
- Increased access to grand jury transcripts for suspects who are eventually indicted
- Expanded safeguards against abuse of witnesses, including education about their rights and the presence of their attorneys
- Notification of targets of investigations that they are targets
- Optional rather than mandatory appearances by targets of investigations
- An end to the requirement that prosecutors present defense evidence, and replacement with a requirement that grand jurors be informed that the defense was not represented in the hearing.
Besides the above stated reform proposals, the National Association of Criminal Defense Lawyers (NACDL) established The Commission to Reform the Federal Grand Jury, a bi-partisan, blue-ribbon panel that included current and former prosecutors, as well as academics and defense attorneys. The unanimous conclusions and proposals of this diverse group were contained in the publication Federal Grand Jury Reform Report & ‘Bill of Rights’. Among the reforms detailed in that report were the right to counsel for grand jury witnesses who are not receiving immunity, an obligation to present evidence which may exonerate the target or subject of the offense, and the right for targets or subjects to testify.
Researchers Erin Crites, Jon Gould and Colleen Shepard of the Center for Justice, Law & Society at George Mason University studied the experiences of prosecutors, defense lawyers, and retired judges in New York and Colorado. Four key reform recommendations emerged from their Evaluating Grand Jury Reform in Two States: The Case for Reform research study are:
- Defense representation in the grand jury room,
- production of witness transcripts for the defense,
- advance notice for witnesses to appear, and
- the presentation of exculpatory evidence to the grand jury.
The Cato Institute, an American libertarian think tank headquartered in Washington, D.C., presented a report, A Grand Facade: How the Grand Jury was Captured by Government which addresses the history of, problems with, and reforms for the grand jury system.
“Runaway” grand jury
Occasionally, grand juries go aggressively beyond the control of the prosecuting attorney. When the grand jury does so the situation is called a “runaway” grand jury. In exercising independence from a prosecutor a grand jury is acting according to its prerogative under common law. Runaway grand juries sometimes happen in government corruption or organized crime cases if the grand jury comes to believe that the prosecutor himself has been improperly influenced. Such cases were common in the 19th century but have become infrequent since the 1930s.
The 1935 Runaway Grand Jury in New York City was investigating gambling and mobsterDutch Schultz when jury members complained in open court that prosecutors were not pursuing obvious leads and hinted that the district attorney was possibly receiving payoffs.Thomas E. Dewey was appointed as an independent prosecutor.
Grand juries in literature
Scott Turow‘s second novel The Burden of Proof deals extensively with the workings and shortcomings of the Federal Grand Jury system in a fictional midwestern state. Turow is himself a practising lawyer and acted as an Assistant U.S. Attorney in Chicago between 1978 and 1986.
A Grand Façade: How the Grand Jury Was Captured by Government
The grand jury is perhaps the most mysterious institution in the American criminal justice system. While most people are generally familiar with the function of the police officer, the prosecutor, the defense lawyer, the judge, and the trial jury, few have any idea about what the grand jury is supposed to do and its day-to-day operation. That ignorance largely explains how some over-reaching prosecutors have been able to pervert the grand jury, whose original purpose was to check prosecutorial power, into an inquisitorial bulldozer that enhances the power of government and now runs roughshod over the constitutional rights of citizens.
Like its more famous relative, the trial jury, the grand jury consists of laypeople who are summoned to the courthouse to fulfill a civic duty. However, the work of the grand jury takes place well before any trial. The primary function of the grand jury is to inquire into the commission of crimes within its jurisdiction and then determine whether an indictment should issue against any particular person. But, in sharp contrast to the trial setting, the jurors hear only one side of the story and there is no judge overseeing the process. With no judge or opposing counsel in the room, grand jurors naturally defer to the prosecutor since he is the most knowledgeable official on the scene. Indeed, the single most important fact to appreciate about the grand jury system is that it is the prosecutor who calls the shots and dominates the entire process. The grand jurors have become little more than window dressing.
At present, Congress seems to be interested only in proposals that will further expand the powers of the grand jury. Recent “anti-terrorism” proposals, for example, have sought to remove critical limitations on the dissemination of grand jury material. Because the grand jury can easily function as a stalking horse for prosecutors to bypass the constitutional rights of individuals and organizations, it is imperative that its powers be scaled back, not unleashed.
Grand Jury Resistance Project
Resist Grand Juries and FBI/Police Harassment
Repression against activists is not new. From the McCarthy “investigations” in the 1950’s, to the counterintelligence programs (COINTELPRO) of the 1960’s and ’70’s, to the grand jury investigations of Puerto Rican, Black liberation and white anti-imperialist movements in the 1980s, secret grand juries, FBI, and police investigations have long been used against social justice activists and revolutionary movements.
Today, FBI, police harassment and secret grand juries are being used to attack Muslims and other immigrants, Black, Puerto Rican, Mexican, Native, anti-war, anarchist, environmental and animal rights activists and movements. These incidents are not isolated, and they are not happening because the government wants to “solve crimes.” They are an attack on all our movements: an attempt to divide us, isolate outspoken individuals, create fear and distrust among us, and rewrite our history of resistance as “criminal.”
We will not give in to these attacks. As individuals and organizations, we must refuse to talk to the FBI or any other repressive police investigation. As a means of resistance to efforts of political intimidation and repression, we must not give testimony or evidence to grand juries. It does not matter whether or not we “know” anything. It does not matter whether or not we agree completely with every action taken against the government, corporate powers, or police. It does not matter whether or not we fully support the ideology of the people under attack.
Historically, government has acted with impunity to suppress dissent and radical social change. In this regard, we know that government is not our friend, and its goal is to defeat our movements. Countless lives have been destroyed as a result of government actions, yet where is the justice for those responsible for three to six million people killed in Viet Nam and southeast Asia, for the architects of the MOVE massacre in Philadelphia, for the people who bombed Judi Bari and assassinated Fred Hampton, for the White House that has cynically killed more than 100,000 people in the occupations of Afghanistan and Iraq, or for the lawyers who have instituted torture as a US foreign policy.
Embrace a strategy of resistance! Pledge to personally resist any repressive investigation, to give all possible support to people who resist, and encourage others to do the same.
Josh Wolf (journalist)
Joshua Selassie “Josh” Wolf (born June 8, 1982) is an American freelance journalist and documentary filmmaker who was jailed by aFederal district court on August 1, 2006 for refusing to turn over a collection of videotapes he recorded during a July 2005 demonstration inSan Francisco, California. Wolf served 226 days in prison at the Federal Correctional Institution, Dublin, California, longer than any other journalist in U.S. history has served for protecting source materials. After Wolf released his video outtakes to the public, U.S. District Judge William Alsup ordered his release on April 3, 2007. In 2007, Wolf ran for mayor of San Franciscoagainst incumbent Gavin Newsom (finishing in 8th place with about 1% of the vote). The next year Wolf accepted a position at the “Palo Alto Daily Post” where he reported on theSan Mateo County government and that of several cities within the county. In 2011, Wolf graduated from the UC Berkeley Graduate School of Journalism and his thesis film “Police Tape” received the Reva and David Logan Prize for Excellence in Investigative Reporting.
Wolf was born in Santa Rosa California. His parents, Len Harrison and Liz Wolf, divorced when he was a young child; he grew up in Wrightwood, California with his mother, an elementary school teacher. Wolf’s middle name, Selassie, is in honor of Ethiopian EmperorHaile Selassie I. His mother was born into a Jewish family, and converted to Christianity, becoming a Messianic Jew and raising Wolf a Christian.
Wolf attended Wrightwood Elementary School in Wrightwood, California and Pinon Mesa Middle School in Phelan, California. He graduated from Serrano High School in Phelan, California in 2000. Wolf received a bachelor’s degree from San Francisco State Universityin 2006, and finished a master’s degree at the University of California Berkeley Graduate School of Journalism in 2011.
Wolf, a video blogger who reported on numerous protest and progressive events, videotaped an anti-G8 anarchist protest in San Francisco on July 8, 2005 in which some of the protesters wore masks and vandalized property. Later that same night, and over the next few days, Wolf edited his footage and posted the video to a local activist news website, Bay Area Indymedia (Indybay). Wolf also sold the video to a television broadcast station (KRON) the day after the protest. In the process of documenting protest actions, Wolf had recorded a tense scene of a protester being choked by a police officer and another officer threatening passers-by with stun guns. The only other recording that was broadcast nearly as much was a still photograph of a bloody police officer who was injured during the protest, not taken by Wolf. Other activists who posted video and photographs to the Bay Area Indymedia website were contacted by the FBI seeking their original source materials, but it is unknown how many, if any, turned over their recordings to Federal authorities. Wolf’s videotape is the only known source material from the protest to have been sought by subpoena after refusal to turn it over. On April 3, 2007, Wolf posted the unpublished footage on his blog after being assured that he would not have to testify about the footage.
Subpoena and arrest
The US District Court empaneled a grand jury to determine whether arson charges should be brought against some of the protesters on the suspicion that they may have intended to damage a police car by firing a bottle rocket under it, even though the only official damage reported was a broken tail light. The premise for Federal intervention in a case involving a city police car was that the car was funded in part by Federal dollars. Josh Wolf did not shoot any footage of the car incident. But because he shot other video footage elsewhere during the protest, and the identities of some of the protesters were allegedly known to him, Wolf was targeted by Federal officials. Wolf was subpoenaed by the court, requiring him to turn over his footage and submit to testifying before the grand jury. Specifically, the FBI subpoenaed him to provide “all documents, writings and recordings related to protest activities conducted in San Francisco” between 6:30 p.m. and 11:59 p.m. on July 8 as well any cameras, recording devices, and his computer.
Wolf refused to comply with the subpoena. His case was picked up by the National Lawyers Guild who asked a federal magistrate in San Francisco to block the grand jury subpoena, arguing that taking such action would have a chilling effect on other journalists covering future protests. U.S. District Judge William Alsup rejected this argument and ordered Wolf be jailed on August 1, 2006 for contempt of court until he complied.
A federal appeals court granted him bail on August 31, 2006 and he was released on September 1, although Wolf again refused to comply with the district court order that he produce the videotape. On September 18, 2006 his bail was revoked and Wolf returned to prison on September 22, 2006. The entire en banc Court of Appeals refused Wolf’s subsequent appeals.
February 7, 2007 marked the 169th day of Wolf’s imprisonment, surpassing the time served by Vanessa Leggett, a Houston-based freelancer who was imprisoned for 168 days in 2001 and 2002 for declining to reveal unpublished material about a murder case. Wolf remained in jail for a total of 226 days, the longest time a U.S. journalist has been held in contempt for refusing to divulge sources or unpublished material.
On April 3, 2007, according to Wolf’s lawyer David Greene, prosecutors dropped their insistence that Wolf testify before a grand jury after he posted the unaired video online. With permission from the prosecution, U.S. District Judge William Alsup signed an order requiring Wolf’s release from the Federal Correctional Institution in Dublin, California.
Central legal issues
There were a number of important legal issues at dispute in this case, including:
- whether journalists can refuse to comply with grand jury subpoenas, and under what circumstances
- whether Wolf meets the legal definition of a journalist and is entitled to those protections
- whether the Federal government has standing in this case
Wolf argued that first amendment protections allow journalists to refuse to comply when a grand jury is not conducted in good faith. Specifically, Wolf believes that the government wants his video tapes to help them identify people who were participating in the protests, not for actual footage of a crime that was committed. He has also argued that the federal prosecutor’s claim for standing is tenuous (based on the fact that federal funds helped to pay for a police car that was damaged), and that the case was brought before a federal grand jury in order to avoid California’s shield laws. There is no Federal Shield Law at this time.
The Federal prosecutor argued that Wolf does not meet the statutory definition of a journalist (under California law) or a common law journalist’s privilege based on the Federal Rules of Evidence. Further, they argued that even if he did, the protections afforded to journalists would not cover his activities in this case because he merely observed the incidents he recorded in a public place. He did not prompt them, nor did he offer anyone anonymity or confidentiality.
District Court Judge Alsup refused to address any of these issues in his written ruling. He simply signed an order written by the Federal prosecutor that ordered Wolf be jailed because it had been established that he was not complying with a grand jury subpoena.
In their written ruling, the United States Court of Appeals for the Ninth Circuit ruled against Wolf on all three issues.
Questions of Wolf’s legitimacy as a journalist have been answered by support from various journalist groups. For example, on August 23, 2006 (22 days after Wolf was incarcerated), The Society of Professional Journalists awarded him their Journalist of the Year “for upholding the principles of a free and independent press.” The SPJ described Wolf as “…a California blogger and freelance journalist…” Josh Wolf was the only journalist jailed for his professional activities in the United States in 2006, according to Committee to Protect Journalists (this organization is a member of International Freedom of Expression Exchange). Support in the journalistic community is not uniform, however. On February 28, 2007, syndicated columnist Debra Saunders attacked the credibility of Wolf’s arguments, namely the lack of an expectation of privacy of those he was filming.
In a televised interview on February 9, 2007, Wolf and his attorney, Martin Garbus, responded to the question of the legitimacy of federal involvement, by claiming that the legal efforts against Wolf were part of a broader attempt by the government to learn the identity of people within the video who are critical of the Bush administration and to suppress American journalism at large.
Wolf stated during his portion of the interview via phone from prison that he has offered to allow the judge to review “in camera” the raw footage to determine if there’s any applicable evidence within the video and the U.S. Attorney’s office refused the offer based on a legal technicality. Wolf also said that the raw video does not offer any more applicable evidence of the arson or assault charges.
The U.S. Attorney’s office declined to participate in the interview but a spokesperson sent a statement saying they were obligated to gather evidence and that six separate judges have “… ruled that this office has issued a lawful subpoena for legitimate investigative purposes …”.
After Josh Wolf took a job as a general assignment reporter at the Palo Alto Daily Post in 2008, he had some choice words for critics who have questioned his claim of being a journalist.
“If the haters who said I wasn’t a real journalist, are still lurking,” Wolf wrote on his blog, “I hope you don’t have too much indigestion after eating your words.’
Candidacy for mayor
On July 4, 2007, Wolf announced his candidacy for the office of Mayor of San Francisco, against incumbent Gavin Newsom. Promising an “open and transparent government”, Wolf stated he would wear a video camera everywhere he does his mayoral business. His platform also discussed homelessness, crime, transportation, public works, gay marriage, medical marijuana and other issues.
Wolf finished in 8th place with 1.24% of votes cast.
- “Joshua Selassie “Josh” Wolf”.[dead link]
- Meet Josh Wolf
- Burman, Tony, Jailed Journalist a symbol of Internet Age, “Letters From the Editor in Chief,”CBC News, March 2, 2007
- Egelko, Bob. “Imprisoned freelance journalist to be released”, San Francisco Chronicle, April, 3.
- Berton, Justin, Videoblogger Wolf now a real journalist, “Videoblogger Wolf now a real journalist” “San Francisco Chronicle“, Aug. 20, 2008
- Wolf, Josh, “Empires Must Fall”, Indybay, July 8, 2005.
- “On the Media” report, February 16, 2007http://www.onthemedia.org/episodes/2007/02/16/segments/73800
- Insurgent, “Watch the Unedited Video”, The Revolution Will Be Televised, April, 3.
- Sarah Phelan (2007-07-17). “Contemplating Wolf”. San Francisco Bay Guardian. Retrieved 2007-07-19.
- Berton, Justin (August 20, 2008). “Video blogger Wolf now a real journalist”. The San Francisco Chronicle.
- “SF: FORMERLY JAILED JOURNALIST JOSH WOLF TO RUN FOR MAYOR”. Bay City News Wire. 2007-07-05. Archived from the original on 2007-09-30. Retrieved 2007-07-12.
- Josh Wolf (2007-07-04). “I’m running for mayor”. The Revolution Will Be Televised. joshwolf.net. Retrieved 2007-07-12.
- Kurtz, Howard (March 8, 2007). “Jailed Man Is A Videographer And a Blogger but Is He a Journalist?”. Washington Post. Retrieved 2007-03-07.
- Blitstein, Ryan (April 19, 2006). “Should journalist Josh Wolf be afraid?”. SF Weekly(Village Voice Media). Retrieved 2007-02-28.
- Noyes, Dan (September 1, 2006). “Jailed Journalist Granted Bail After 31 Days”. ABC News. Retrieved 2007-02-28.
- Egelko, Bob (August 1, 2006). “Journalist jailed for refusing to give up tapes of protest”. San Francisco Chronicle. Retrieved 2007-02-28.
- McKinley, Jesse (August 2, 2006). “Blogger Jailed After Defying Court Orders”. The New York Times. Retrieved 2007-02-28.
- “Call for immediate release of imprisoned freelance journalist” (Press release).Reporters Without Borders. August 2, 2006. Retrieved 2007-02-28.
- “National Lawyers Guild Condemns Jailing of Journalist Blogger” (Press release).National Lawyers Guild. August 1, 2006. Retrieved 2007-02-28.
- Goodman, Amy (February 12, 2007). “Imprisoned Journalist Josh Wolf Speaks Out From Jail After Over 170 Days Behind Bars”. Democracy Now! (Pacifica Radio Network). Retrieved 2007-02-28.
- “IPI Condemns Continuing Imprisonment of Journalist in US Prison” (Press release).International Press Institute. February 22, 2007. Retrieved 2007-02-28.
- Kaus, Stephen (October 9, 2006). “Ninth Circuit Rules That Freelance Journalist Josh Wolf Must Comply With Federal Subpoena”. Eat the Press (The Huffington Post). Retrieved 2007-02-28.
- Wasserman, Edward (February 21, 2006). “The Principled One’s Still In Jail”. The Hartford Courant (Tribune Company). Retrieved 2007-03-04.
- Wasserman, Edward (February 19, 2006). “The vanishing art of standing firm”. The Miami Herald (The McClatchy Company). Retrieved 2007-03-04.[dead link]
- Saunders, Debra (February 27, 2007). “Josh Wolf–blogger–has no press pass”. San Francisco Chronicle. Retrieved 2007-07-08.
- “US reporter ends record jail term”. BBC News. April 3, 2007. Retrieved 2007-04-04.
- Josh Wolf’s Video Blog
- Josh Wolf’s Wiki
- Josh’s LinkedIn page
- July 8, 2005 Protest News Coverage and Josh Wolf News from Bay Area Indymedia(Indybay).
- January 14, 2007 — Wolf’s mother, Liz Wolf-Spada, is interviewed following the National Conference for Media Reform convention in Memphis, Tenn.
- March 23, 2007 — Josh Wolf Interviewed from Jail by The Common Language Project
- Josh Wolf Interviewed from Jail by Democracy Now!
- Josh Wolf interview with PBS’ Frontline
- Frontline video segment featuring Josh Wolf’s story
- CBS GRAND-JURY Report
- The Guardian – Web journalist jailings ‘reflect power of internet’
- “Blogger seeks release as imprisonment enters third month”, AP story, in San Jose Mercury News, November 20, 2006.
- NPR’s Talk of the Nation interview, April 9, 2007
- Josh is interviewed by RU Sirius about anarchism
- Wolf criticizes Current TV of censorship