Losing faith in the Independent Counsel Act

July 05, 1998|By Paul Delaney

WHEN it's all over, when independent counsel Kenneth Starr has shuttered the windows and turned off the last lights of his vast prosecutorial empire, I will bow in gratitude -- we all should give thanks. I won't be relieved simply because this expensive and extraordinary experience is finally done with, whether or not he gets his man. Personally speaking, Ken Starr hit me with a two-by-four and helped make up my mind on two issues I've been in turmoil about for some time.

Thanks to the independent counsel, I am now against the grand jury system and the Independent Counsel Act whose enactment I supported two decades ago. The former would require a constitutional amendment to do away with, being a carry-over from 12th century England and now woven into our sense of justice as deeply as trial by jury. But given the desire of some citizens to saddle the Constitution with amendments or replace representative government with rule by referendum, surely others out there in this huge country must feel likewise about grand juries.

As for the Independent Counsel Act, if it takes several years and $40 million and counting, and a queue of battered lives littering the landscape and no end in sight, besides the damage to legal and journalistic ethics and possibly the Constitution, then our way of life is under threat if the standards that Mr. Kenneth Starr has set become the norm.

Supreme Court Justice Robert Jackson dealt with the issue in 1940, warning that a prosecutor is most dangerous "when he will pick people he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone." Given the money, time and his nature, a Ken Starr could easily fulfill Justice Jackson's worst worries.

Raising doubts

I began to question the grand jury system as a probation officer with Municipal Court in Atlanta. My doubts increased when I was a newspaper reporter covering courts in Ohio. I was convinced even more when I served on a grand jury in New York City. Now, Mr. Starr has validated that conviction.

I've found some judges, and a few prosecutors, who agree with me. The greatest abuse is not going after someone to settle personal scores, but in selecting cases, deciding what the charges will be and making the cases high profile, if they aren't already, for purely political reasons. Prosecutors, naturally, want to move to the next level, to the governor's office or the bench or a lucrative law practice. High-profile cases and successful prosecution, particularly of people who elect to go to trial, can almost guarantee that next level to an extremely ambitious prosecutor. The vast majority of criminal cases are settled by plea bargain (in theory, every case could end that way, but there is enough cynicism and serious questions about the justice system already; besides, prosecutors -- and judges -- need the big trials for politics).

My feelings about the system were influenced by grand jury service, as foreman. It was then that I saw manipulation first-hand. We were expected to be rubber stamps for whatever prosecutors presented. We fulfilled that task the first week, indicting as fast as they could produce cases. But then, we said, whoa! These guys are insulting our intelligence; it is offensive the way they are treating us. For example, in one case, we refused to return the quick indictment because the case was too weak. The prosecutor brought in another witness. We said not enough to indict. They said wait a second. More evidence. Nope. They finally withdrew the case, to give to another jury, we figured for better results.

We began asking more and deeper questions. Near the end of the two-week period, we told our keeper that we wanted to complain to the judge. He said to wait until the end and to put it in writing. Of course, he knew that our desire to get out of there outweighed our outrage; we parted ways without any action, and I never saw a fellow juror again. But the system, we concluded, was a mere formality, therefore a waste: Prosecutors do not really need a grand jury to bring criminal charges.

KGB tactics

In the matter of Kenneth Starr, it seems that the American people have been put through this agony for the sake of a book deal between a loony-acting agent and a loose cannon former White House clerk. Throw in Mr. Starr and staff and we have something akin to shouting fire in a crowded hall. With his weird interpretations of the law and rough-house tactics, his office seems more appropriate for the KGB than an arm of American justice. His major accomplishment, so far, seems to have been in influencing the Frederick Police Department to be nasty and turning a lot of us against him and his office.

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