IN THE PREMIER edition of Brill's Content, a new magazine launched by Court TV founder Steven Brill, independent counsel Kenneth Starr admits he and others in his office leaked information to the press about the investigation into President Clinton's relationship with former White House intern Monica Lewinsky.
But Starr insists his office did nothing illegal or unethical. He claims he followed exceptions to secrecy rules that allowed him to disclose information to shore up public confidence in his investigation.By tweaking and stretching every rule and power at his disposal, Starr has done us all a favor. He has pointed out that the modern grand jury process operates without public scrutiny or oversight. What started out as a protection for people accused by government is now an instrument of prosecutorial power that needs to be tamed.
Interestingly enough, at the same time many other aspects of the criminal process are being opened to the public, the grand jury process remains tightly shut. In recent years, state courts have allowed cameras to broadcast trials, O.J. Simpson's being the most notorious example. And many pretrial procedures, including voir dire, the interrogation of the jury pool and pretrial detention hearings, have been opened to the public.
Driving this push for public access to court proceedings is an understanding of the importance of disclosure as a check against a kangaroo court. The press and public moderate against overzealous or malicious prosecutions.
People also have the right to watch as justice is dispensed in our name. In 1980, the Supreme Court ruled that even if a defendant wanted to close out the public from his trial to save himself the embarrassment of a public spectacle, he typically couldn't, because the people have a First Amendment right to receive information about the criminal judicial process.
Despite the fact that these same rationales are as validly applied to the work of grand juries as to all other pretrial hearings in criminal cases, this wrenching open of formerly closed proceedings ends at the grand jury's door.
The grand jury, a process guaranteed in the Fifth Amendment, has become the prosecutor's handmaiden rather than the independent investigative and accusatory body the founders had envisioned.
The actions of Starr are a good example. Not only has Starr been allowed to subpoena a broad band of witnesses, but his questioning is virtually without limits.
He was allowed to interrogate White House adviser Sidney Blumenthal on the conversations he had with the media about members of Starr's prosecution team, questions which are irrelevant to the Clinton investigation. Starr has also subpoenaed records of Lewinsky's book purchases, he has dragged Lewinsky's mother before the grand jury and he has been allowed to repeatedly bring witnesses back. Nancy Hernreich, an Oval Office gatekeeper, has been called before the grand jury seven times.
Starr has been able to do all this without the inconvenience of respecting any traditional defense protections. Not only doesn't the target of the investigation get representation at the proceeding, but the witnesses themselves cannot bring attorneys in to protect their interests. None of the witnesses is cross-examined by the defense, so the prosecutor's version of events is the only one the grand jury hears. Then the defense is denied transcripts of the proceedings, because the process is secret.
Conceptually, the grand jury is supposed to be leading the investigation, but in reality the prosecutor pulls all the strings and uses this power as a way to pressure guilty pleas. About 90 percent of federal convictions are plea-bargained, most after coming before a grand jury. Of charged cases that go before federal grand juries, 99.9 percent are given the green light to proceed, meaning that the system is a tool of the prosecutor.
Somewhere, something went wrong. The grand jury was intended to be a protection from spurious prosecutions, not a prosecutor's club.
In England, the grand jury system dates to before the Norman Conquest. Grand jurors first asserted independence from the crown in the late 17th century. That's when the ability of grand jurors to interview witnesses away from the king's representative became part of common law. More important, it was the prosecutors, not the defense, against whom the need for secrecy was asserted.
Of course, our modern grand jury not only allows the prosecutor access to the proceedings but makes him top dog. Which is why our government tenaciously defends the grand jury system and rebuffs any attempts to open the process or make it more fair to the accused.
Starr's freight train approach to the Lewinsky investigation may do more than just put the unfettered power of the independent counsel under scrutiny; it may also spark the re-examination of the federal grand jury system. Not to shut it down, but to open it up.