White-Collar Crime

Grand Jury Secrecy -- The Other Kind

Cracking the great big black box of the criminal justice system.

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Aaron Schock is a former member of Congress. He’s also been indicted in federal court in Illinois.

A fascinating bit of litigation has been going on in his case recently about whether the government improperly talked to the grand jury that returned the indictment against Schock. And it underscores one big problem in federal criminal work.

Schock declined to testify before the grand jury. This makes sense — there’s not a lot of upside to talking to the grand jury if you’re the target of an investigation. For one thing, your lawyer can’t be there. For another, the prosecutor — and the grand jurors — can ask whatever they want. There’s no judge in the room to referee. And the grand jurors are likely to be predisposed not to like you; they’ve already heard from a host of witnesses about all the bad things the government thinks you’ve done.

There’s also substantial likely downside that you will say something that will hurt you or, at best, you say something that you would have been able to say at trial that will help you, but, now that you’re on record with it, the government can prepare. The government is, in short, likely not doing a fair evaluation of whether to go forward with their case against you. They’re gunning to put you in prison. And there’s no meaningful likelihood you’ll talk the grand juries out of indicting you because grand juries are essentially indictment factories.

So, when you do the cost benefit analysis, there’s a whole lot of cost and very little benefit. Which is why one shouldn’t talk to the grand jury.

The prosecutor isn’t supposed to comment in the grand jury about whether or not you testify — you have a right not to testify and in a criminal case an adverse inference is not supposed to be drawn from that.

What makes grand juries so maddening is that they’re a black box. A defense lawyer in federal court has basically no right to get grand jury transcripts unless he or she can make a showing that there’s something irregular in the grand jury. And, of course, you can’t show there’s something irregular, generally, without the transcripts.

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A funny thing happens though, when you get a former AUSA drunk and ask him or her about practices in the grand jury. You learn that stuff happens. You hear that some prosecutors just wing it when they’re doing jury instructions on elements of an offense, or on probable cause.

This should not be surprising. Of course stuff happens. Even AUSAs are human, and humans make mistakes. Yet our federal criminal justice system — when overseeing grand juries — assumes that by making something private and essentially unreviewable, it will get better. It’s an impressive act of judicial faith.

Schock’s attorneys aren’t typical though — they had an affidavit from a grand juror saying that the grand jury heard one of the AUSAs comment on Schock’s refusal to testify before the grand jury.

The government responded. Actually, the government responded in a few ways. Here’s how the Court summarized it:

[The government responded to] Defendant’s allegation that a [g]overnment  attorney made comments regarding Defendant’s failure to testify before the Grand Jury. Originally, the [g]overnment denied Defendant’s allegation, stating that it “unequivocally submits to this Court that this allegation is false. It did not happen.” However, the [g]overnment has now changed its position, admitting that “on eleven occasions – seven times before the first grand jury and four times before the second grand jury – government counsel commented on or addressed Mr. Schock’s testifying or decision not to testify before the grand jury.

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This is not a good thing to see if you’re the government. They’ve gone from a mistake — though a serious one — before the grand jury, to having a federal judge find that the government was misleading.

Eventually the judge threw out two charges. Only 22 remain.

Schock’s lawyers are over the moon, as they should be. As Politico reports it:

“The decision is great news for Aaron and the cause of justice,” said George Terwilliger, Schock’s lead attorney. “The judge has agreed with us on the contested legal issues and further factual development will show that the remaining counts cannot withstand legal scrutiny. As we said in our pleadings, the indictment is a house of cards, which has now begun to fall.”

H/t to Solomon Wisenberg over at the White Collar Crime Profs Blog for excellent coverage of the case.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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