He could indict the Easter Bunny

January 29, 1996|By Ray Jenkins

BY MOST ACCOUNTS, independent counsel Kenneth Starr called Hillary Rodham Clinton before the Whitewater grand jury because he was miffed that it took the White House two years to produce records he'd subpoenaed. If this is true, then it is reasonable to ask, is this a proper use of the grand jury?

After all, Mr. Starr had already questioned both Mrs. Clinton and the president under oath -- much as O.J. Simpson is being deposed in the civil actions against him in California. Moreover, we might ask, why did Mr. Starr summon only Mrs. Clinton, when the president had as much opportunity to tamper with the lost-and-found records as the first lady? It's a good guess that Mr. Starr simply shrank from the spectacle of an unelected prosecutor, appointed by unelected judges, compelling the president of the United States to appear before an unelected body to answer questions under implied threat of prosecution.

It is not a partisan issue, nor one confined to Washington's scandal du jour, to question whether Mr. Starr was using the grand jury more to intimidate than to elicit information. Indeed, the harshest criticism of the grand-jury system in recent years has come from Republican men, not Democratic women.

John Connally, the former Texas governor, bitterly criticized the grand-jury system after his indictment -- followed by swift acquittal -- on charges that as secretary of the Treasury he took bribes from milk-industry lobbyists. And who can forget the burning indignation of former Labor Secretary Raymond Donovan when he asked, after his acquittal on a spurious indictment on fraud charges, ''Where do I go to get my reputation back?''

Practical function

In its inception in England a thousand years ago, the grand jury served a very practical function: When the king's magistrates made their periodic visits to hinterland communities, an ad hoc body of leading citizens would present the authorities with a list of those who had committed crimes.

In time the grand jury evolved into its role as a protector of citizens subjected to malicious or unwarranted charges. In colonial America, the grand jury became a cherished mechanism of resistance; the Crown's agents simply could not secure indictments against citizens.

But today, it is universally recognized that any prosecutor of modest skill -- and immodest ambition -- could persuade a grand jury to indict the Easter Bunny for littering. Any grand jury that strays from its role as the prosecutor's dutiful handmaiden is quickly branded a ''runaway'' grand jury.

In its modern form, the grand jury has become a tool for applying a legal third-degree. The prosecutor can pick and choose the evidence he will present, even suppressing exculpatory evidence which he knows will come out at trial. Witnesses compelled to testify enjoy none of the customary due-process protections such as the right to counsel or the right to confront accusers. The prosecutor is not even required to advise witnesses of their right to refuse to give self-incriminating testimony. Hearsay evidence is allowed, and double jeopardy does not apply.

Moreover, the grand jury has become the modern equivalent of the detested Court of the Star Chamber in which trials were conducted in complete secrecy. A grand juror who chose to go public with questions about a prosecutor's conduct would risk being charged with a crime.

In theory grand jurors can ask any question they wish, and it is interesting to speculate how Mr. Starr might have responded had one asked him, ''Now that we have heard Mrs. Clinton's testimony, what do you propose that we do with this information?'' Alas, it is not likely that a docile grand juror would have the temerity to so question authority.

In reality, grand juries have only the limited power to bring formal charges, and yet few words carry more terrifying force than ''indicted.'' Once the word has been put into a headline, it follows the accused to the grave. Even the word ''subpoenaed'' carries nearly as much opprobrium in the public mind. Never mind that an indictment is only an unproven allegation; the action by a ''grand'' jury enables a prosecutor to hide behind an illusory cloak of public action.

As a practical matter, the already overburdened criminal-justice system would break down entirely if it were necessary to secure an indictment, as the Constitution seems to require, in the case of every ''infamous'' crime. Virtually every state today relies instead on preliminary hearing before a magistrate as the method of initiating criminal prosecutions.

The grand jury has become a grand anachronism, and it is time to relegate it to no more than a ceremonial role, if any at all.

Ray Jenkins is the retired editor of The Evening Sun editorial pages.

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