By ED NASH Public information officer for the Department of Registration and Education, Nash was political editor of The News-Sun, Waukegan, from 1969 to 1977.

Is it a protection for citizens or an instrument for prosecutors?

The grand jury system

SHIELD OR SWORD? Is it the "true tribunal of the people" or is it an administrative arm of the prosecutor in criminal cases? The questions are about the grand jury system and they have been debated for more than a century in Illinois. Now, with the new Illinois Constitution in effect and with increased interest on the federal front, the debate has increased in intensity.

Surprisingly, there has been relatively little change in the grand jury system which the United States and its individual states inherited from Great Britain where its history dates back more than eight centuries. Illinois, however, maybe the No. 1 exception in the Union.

Contrary to some misconception, King Henry II established the "Grand Assize" in 1166 to gather information about criminal activity from the citizenry. It took more than five centuries for the classical argument in favor of the grand jury system to develop: That it stands between the people and the state, specifically between an accused citizen and the prosecutor. The argument rests on the belief that the grand jury prevents the prosecutor from bringing an unfounded charge against a totally innocent person for malicious reasons or without sufficient cause. This idea evolved from a 1681 case in which an English grand jury refused to grant the request of the king's prosecutor for anindictment against a nobleman accused of treason. Thus was born the concept that citizens on a grand jury would countermand an overzealous or malicious prosecutor with a weak or contrived case, particularly in a charge of sedition.

'It has become in effect an administrative arm of the office of attorney general or district attorney'

The grand jury was a well-established institution by the time of American colonization, and it was firmly rooted in the British soil of North America. At the time of the American Revolution, grand juries were understandably popular because, in many cases, they stood between American patriots and the Crown's prosecutors. It was little wonder that, when the U.S. Constitution was drafted, the grand jury system was incorporated into the Bill of Rights to protect the citizen from unjustified prosecution. And the U.S. Supreme Court has consistently upheld it, declaring in Hoffman v. U.S.: "The most valuable function of the grand jury is to stand between the prosecutor and the accused."

The states of the Union followed suit in their state charters, Illinois among them. Since that time, however, the feeling has developed that, in the hands of a determined and/ or publicity-seeking prosecutor, the grand jury has become a sword rather than a shield for the citizen, that it has become easier and easier for prosecutors to use the grand jury as an instrument for their own purposes.

The new Illinois Constitution apparently recognized this perception when its framers eased the requirement for altering the grand jury system. The previous, century-old state Constitution (Art. II, Sec. 8) provided only for total abolishment "by law in all cases" of the grand jury system; no alteration permissible except its total elimination. The new Constitution (Art. I, Sec. 7 provides that the Illinois General Assembly may abolish the grand jury "or further limit its use," which opens the way for possible changes in the system. But the questions remain: Is the grand jury sword or shield? Or, in the words of James P. Shannon, former president of the College of St. Thomas in St. Paul, Minnesota, is it "the true tribunal of the people" or an arm of the prosecutor?

While a law school student in New Mexico five years ago, Shannon wrote that Thomas Jefferson — in a petition to the Virginia General Assembly — termed the Anglo-Saxon tradition of trial by grand and petit jury "the true tribunal of the people." However, Shannon has said more recently "numerous weaknesses in the modern operation of the grand jury system have come to light. . . [it] has become in effect an administrative arm of the office of attorney general or district attorney, it no longer enjoys public confidence, is frequently a device for the miscarriage of justice."

Nevertheless, the grand jury system remains in the U.S. Constitution. There has been no tinkering with the Bill of Rights since 1789, and 28 of the 50 states in the Union require grand jury indictment either by constitution or statute. But during this decade in Illinois, there have been efforts to change the grand jury system drastically.

Advocating a commission to study it, state Rep. John S. Matijevich (D., North Chicago) said in 1973 that "we must determine whether the initial

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purpose of the grand jury to stand as a safeguard between the prosecution and the accused is still preserved under the present system... if it is no longer the buffer that it was intended to be, we might be better to replace the grand jury with the information and complaint process."

Writing in the University of Illinois Law Forum the same year, then state Rep. Brian B. Duff (R., Wilmette) and Arthur E. Harrison, a House Judiciary Committee counsel, said: "The grand jury serves at best no useful purpose, and at worst may be subject to abuse by a prosecutor with either personal or political motives. . . it is a rubber stamp for the state's attorney and not an independent institution protecting a defendant's right."

Then, two years ago, then Gov. Dan Walker signed into law legislation which some lawyers (including Duff, now a Cook County Circuit Court judge) said brought the most significant changes in the grand jury system in Illinois history. Considered the key bill in the series was one that permitted a state's attorney to bypass the grand jury and prosecute a felony case by filing with the court an information, a formal charge drawn by his office equal to an indictment from a grand jury.

Duff, who handles felony cases in circuit court, says that the most significant bill in the approved package was the one which provides that a person charged with a crime or the target of a grand jury probe can have his lawyer in the grand jury room with him. "That is the first real modification of the nature of the grand jury itself," Duff contends, and Illinois was the first state in the Union to make it state law. For some reason, he adds, "The existence of the Illinois law has been little noted."

The third bill in the grand jury series enacted into the law in 1975 was one that proviides that a transcript be made of the prosecutor's questions and witnesses' answers during the secret grand jury sessions. The "bypass" law definitely has decreased the use of the grand jury, Duff says and has also decreased the time for a trial to get under way. "It used to take three months to get an indictment in Cook County," he points out. That was critical because of the Illinois law which says that no more than four months can ensue between when a person is arrested and when he must go to trial, unless the defendant himself has caused any delay.

An attempt was made to amend the law last year in the General Assembly, to give prosecutors a new 160-day pre-trial period after a defendant out on bond caused a trial delay. The change would have exempted those on bond from suspension of the time rule covering those in custody. The change passed the legislature but died when the governor made an amendatory veto to clarify the bill (S.B. 728), and an override attempt failed in the House. Otherwise, the defendant goes free without trial. One result of the "bypass" law, the lawmaker-turned-judge says, is that smaller counties in Illinois "do not use the grand jury at all."

Capsulizing the three grand jury laws in Illinois, Duff says: "The 'bypass' has decreased the use of the grand jury . . . the transcript has brought reporting of the grand jury . . . and the lawyer-in-the-grand-jury-room has modified its actual nature." Reiterating what he said the day the three grand jury bills were signed into law. Duff calls it "a happy day for the criminal justice system."

In their 1973 article. Duff and Harrison cite statistics to back up their contention that "generally speaking, the grand jury often degenerates into a rubber stamp wielded by the prosecutor." In the early 1930's, they said, University of Oregon Law School Dean Wayne Morse (later U.S. senator from Oregon) studied 162 prosecutors in 21 states, including Illinois, and out of 6,453 cases in which the prosecutor expressed his own preferences, the grand jury disagreed on only 348 — 5 per cent. Further, they said, statistics can be misleading. A 1964 study of the Cook County grand jury, they said, revealed that, out of 4,239 indictments sought, the grand jury returned 3,862 true bills (indictments) and 377 no-bills — some 10 per cent — refusals to indict. They said, however, that an assistant state's attorney working with the grand jury for more than two decades estimated that about 90 per cent of the no-bills came from such a practice as knocking out all the charges against a defendant except the one for which he was indicted. In the final analysis, they said, the "best balance of interest — saving time and resources, minimizing abuses and limiting the amount of politics in political cases — requires elimination of the grand jury indictment, with one exception." Their lone exception was cases of official misconduct, where they would have a panel of citizens make the determination of probable cause.

It is ironic, perhaps, that while the questions persist over the future of both county and federal grand juries, Gov. James R. Thompson and Atty. Gen. William J. Scott have joined forces to push for passage of legislation to permit a statewide grand jury system in Illinois. Although many might argue against the specific proposal, few would quarrel with what the governor stated was its purpose: "To permit the attorney general to attack consumer fraud and other abuses of the public on more than a countywide scale [to] benefit all lawabiding Illinoisans." Such measures have been offered in the General Assembly before and, thus far, have met defeat.

Meanwhile, the American Bar Association (ABA) and the Congress are getting into the grand jury act. Meeting in Chicago this summer, the ABA House of Delegates voted, by a 2 to 1 margin, for a proposition that witnesses before a grand jury should have the right to be accompanied by an attorney. There was little note that such a provision had been the law in Illinois since 1975. Under the proposal, lawyers are allowed to advise their clients but are forbidden to take any active part in the grand jury proceedings. In almost all states, a witness before a grand jury must leave the grand jury room to consult with his lawyer, who is forbidden entrance. Backers of the ABA measure said that the frequent trips in and out by a witness give an impression of guilt and increase

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the possibility of his indictment if he is being investigated.

U.S. Atty. Gen. Griffin B. Bell, on record in favor of grand jury reform in principle, told the ABA House of Delegates that the "remedy proposed is much broader than the wrong you have found" and could damage the grand jury process by "overkill." Another opponent, Benjamin Civiletti, chief of the U.S. Department of Justice Criminal Division, said that the proposal would "impede fact-finding by the grand jury," particularly in cases involving organized crime, drug abuse and white-collar crime."

Grand juries can be an effective buffer between innocent people and the state

At the same time, Richard E. Gerstein, Dade County (Fla.) state's attorney and chairman of the ABA's Grand Jury Committee, told the ABA convention that grand juries are in danger of being abolished or having their power cut severely unless major changes are made to curtail abuses by over-zealous prosecutors. "We want to preserve the system," Gerstein was quoted, "because, when it functions as it was intended, it can be an effective buffer between innocent people and the state, and it gives citizens a chance to participate in the criminal justice system." Both Civiletti and Gerstein were touching apparently, too, on the independent investigatory powers of the grand jury, which critics say grand jury members rarely know about or utilize to the fullest extent.

Currently in Washington, a U.S. House Judiciary Committee subcommittee is taking expert testimony on the grand jury system. It has been pointed out that from 1970 to 1973 during the administration of former President Richard M. Nixon, agents of the Justice Department convened some 100 grand juries in 80 cities in pursuit of various radicals. There were far more jail terms for contempt of the grand jury (refusal to answer questions) than convictions on charges sought by the department.

In a new book published in June 1977 by Hill and Wang, The Grand Jury: An Institution on Trial, U.S. Judge Marvin Frankel and Attorney Gary Naftalis state that the grand jury "has served too often to harass the unorthodox and the unpopular." Among reforms they suggested — and incorporated in a bill introduced by U.S. Rep. Joshua Eilberg of Pennsylvania — is the one endorsed by the ABA delegates (and part of Illinois law): to permit a witness to bring his attorney into the grand jury room. Others would limit jailing for refusal to answer questions to six months, instead of the present limitless term, and completely immunize a witness from prosecution for any offense discussed during his appearance.

Meanwhile, opinions about the grand jury system continue to vary. U.S. District Judge William J. Campbell, the retired former chief judge in Chicago, says that "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." But the late Casper Apeland, longtime chairman of the Lake County Jury Commission, which interviews and assigns residents of the county to both grand juries and trial court juries, used to call grand juries "public watchdogs." Apeland said, "Grand juries have authority and power which is delegated to no other public body. Not only do they bring indictments in cases brought to them by the state's attorney; but they can initiate their own investigations of public officials ... in effect, they are public watchdogs."

Disagreeing, Melvin M. Belli, the noted trial attorney, says, "The grand jury is the second most outdated and unprotective of the individual systems remaining in today's otherwise good American trial law." (Belli's first: the coroner system.)

Two others take a middle ground. Paul M. Lukes, writing in the spring 1969 John Marshall Journal of Practice and Procedure, recommends that the indictment function of the grand jury be replaced by an information system, while the grand jury be retained in its investigatory capacity." Richard M. Calkins, a Chicago lawyer, says that "adoption of the dual system, the state's attorney's information and the grand jury's investigation, would give Illinois a more efficient and economical judicial system."

For what it is worth, Great Britain, the nation where it all began, abolished the grand jury by Act of Parliament in 1933 — 45 years ago. Citing that historical fact, Shannon, the college president turned law school student, can probably be forgiven for placing tongue in cheek and stating: "A span of four decades is a decent interval for us to allow before rushing to adopt any innovation in the law merely because the English have done it already." 

24 / February 1978/ Illinois Issues