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Thursday, October 27, 2005

Untying a Few Legal Knots

The latest spate of news reports (or non-news reports, as the case may be) keep stirring up the same series of questions. Thought it might be helpful for a few legal knots to be undone, at least to the extent that I can do so with basic explanations. I previously addressed some issues on Grand Juries a while ago, but some additional questions and facts have arisen that needed further explanation, so here goes.

Figured no one was really interested in a law review treatise on any of this, so I'm going to skip the arcane and just hit the essential bits. As with anything in the legal world, there are always all sorts of tangentially related matters, directly related exceptions and all sorts of other legal bits that may apply. This is, by no means, an exhaustive or comprehensive treatment of the subjects -- just a quick primer for the non-legal folks among us, or for the legal folks who never delve into criminal matters (it's a whole world unto its own, believe me).

Is this a Grand Jury or a Special Grand Jury? What is the difference?
After everyone working for weeks under the assumption that this was a special grand jury, based on media reports, yesterday's article in the WaPo revived that question for me. Since there has been no sourcing in any of the articles thus far, I decided to take matters into my own hands and called the Federal District Court Clerk's Office for the DC Circuit this morning. Amazing how such a little thing as the telephone can prove so useful, isn't it?

As it turns out, this is a regular old Grand Jury. The Clerk with whom I spoke told me that "no special Grand Jury is seated at this point" in the DC Circuit. (Am trying to not read into tea leaves that perhaps one could be seated shortly, and just take that as a no special grand jury at present, thanks.)

What this means in terms of the term of the grand jury is this: a regular grand jury has a normal term of 18 months. A special grand jury has a normal term of up to 36 months, if all extensions are requested.

However, and this is a big however for this case, a regular grand jury may also be extended for up to 6 months at the approval of the presiding judge.
Rule 6(g) Discharging the Grand Jury. A grand jury must serve until the court discharges it, but it may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury’s service. An extension may be granted for no more than 6 months, except as otherwise provided by statute.
So, perhaps, Friday isn't the end of this particular jury after all. The determining factor is that the extension be in the "public's best interest," which in this case arguably would be based on the late-disclosed information due to refusals to testify (*cough*Judy*cough), obstruction issues, and the late-breaking "come to Jesus" moments that Jeralyn has so aptly described.

I have a call out to determine the exact date of empanelling, the term that has been served (because some extension had previously been granted I believe, and other details -- but I'm waiting for specifics on this), so I will update as I get them.

As this is a matter of national security, and as the Special Prosecutor has had to deal with obstruction and perjury issues from witnesses, I would think that an extension would be granted under those circumstances, should it be requested at, say, lunchtime meetings and so forth, if that is possible under the rules. But I know nothing at all concrete on this, so be warned that this is simply a legal possibility.
UPDATE: Am inserting the update here to be sure everyone sees this. Thanks to reader Sebastian for the heads up -- I missed this in my quick re-read of the legal filings this morning. (No more posting without adequate coffee!)
...the grand jury's term (which was to expire in May 2005) was extended untile late October 2005, when it will finally expire....(from the Government's Memorandum in Opposition to "Joint Motion for Scheduling Conference"
So that means that the end of the 6 month extension would be it for this particular seated jury. This does not, however, in any way preclude the seating of a new G/J, nor does it preclude the voting of numerous indictments up or down today or tomorrow. (I, personally, have presented and had voted 47 individual, multi-count indictments in a single day for vote from a G/J, so it is certainly possible that a lot will happen tomorrow...or not. Hold onto your hats. Looks like a bumpy ride.)

Additionally, should the current grand jury term expire on Friday without an extension, a new grand jury could be convened to continue the investigation, if necessary, until a conclusion is reached on criminal culpibility for indictment.

Fitz would make that call and request to the presiding Judge, who would then approve or deny the request based on the stage reached in the investigation, the alleged criminal activity and its impact on the public, and a number of other factors. One would assume that a national security matter would rise to the level of deserving an extension or empanelling a new grand jury, but those decisions are best left to judges who know all the facts. We'll soon know which scenario is applicable -- as soon as tomorrow.

What's all the hubub about indictments? Can someone plead to a criminal charge without being indicted? What is a sealed indictment? What is an indictment anyway?

Defendants can be indicted by the grand jury as a means of being charged criminally -- but they do not have to be charged in order to enter a guilty plea. A prosecutor also has what is called an "information" in his arsenal as a means of charging a defendant with a criminal charge outside of the grand jury process.

An information allows the prosecutor to work out a plea deal with a potential defendant, often in exchange for that defendant "flipping" or giving substantial cooperation and testimony against others in a criminal enterprise, before the grand jury has ceased examining the case. (This happens a lot in drug and mafia prosecutions where you have interconnected conspiracies and defendants with differing levels of culpibility in the criminal enterprise. Prosecutors start at the bottom and work their way up in these situations.)

An indictment is a statement by the grand jury that says that they feel that it is more likely than not that a person has been involved in the commission of a crime and that a criminal trial is warranted based on the evidence they have seen. This isn't to say that a person is determined likely to be guilty, but that it is more likely than not that they might be found guilty. (I know, splitting hairs, but there you are. A grand jury works at a far lower standard than a criminal trial jury -- a "more likely than not" versus a "beyond a reasonable doubt" sort of difference.)

Prosecutors have a lot of leeway in how they structure the indictment proffered to the grand jury members for voting. They can be broken down by each individual involved in a particular criminal enterprise -- say, if you have 5 people involved in a conspiracy, there can be 5 separate indictments, one for each person. Each individual indictment can contain a single count -- or it contain many, many counts -- depending on the conduct alleged.

Or a prosecutor may seek a single indictment for a particular criminal enterprise that is a large conspiracy, but it will detail the various people alleged to have participated in this scheme and who are implicated by this indictment. So every time you hear some rumor that there is only one indictment -- well, that doesn't mean a whole hell of a lot, unless you know what kind of indictment it is, now does it?

A sealed indictment is one which is kept from being publicly disclosed for a time, until the defendant has been arrested and arraigned before a Federal Magistrate Judge. Sealed indictments are often used in cases where there is an ongoing investigation (Such as drug cases, where you work up the chain from the small dealers to the bigger ones, but you don't want to tip anyone off that you are investigating their network if, say, you've flipped a few low level people and are using them to do controlled buys up the chain.) and/or you have defendants that you are afraid will flee your jurisdiction before they are apprehended. But they may also be used for other reasons, including security and other considerations, if approved by the presiding judge.

What is a "creative prosecutor?"

In my experience, the people who complain about a prosecutor being creative are criminal defense attorneys and family members of the people indicted. In this case, it's GOP strategists, who haven't complained at all about the "creative" use of detaining people of interest for terrorism cases without any hearing, any legal representation or any due process for months. Ahem.

Prosecutors are limited by the laws as written by Congress. However, if someone has broken a law, and is charged with that particular conduct, the prosecutor should not be castigated for charging the violation simply because other prosecutors are either too lazy, too uneducated, or too busy to use prosecutions for that law themselves -- even prosecutors sometimes get into a rut in terms of what they do and don't charge. A good prosecutor avails herself of all the laws, not just a select few.

No matter how you label a prosecutor, that does not change the fact that the underlying conduct may have violated a law on the books. And since Congress makes the federal laws, hearing Congressional members complain about "creative prosecutions" is really kind of amusing. Those darn perjury technicalities and all.

What's with all the late gumshoe work and sending out the FBI guys this week to talk with neighbors and stuff? Does that mean the prosecutor has been sloppy about details like some talking head person said on TV or what?

Well, no. What it likely means is that some witness with whom investigators spoke recently made some very specific factual claim about something that was or was not said or done that involved the Wilson's neighbors. Like any good prosecutor, Fitz would have investigators check and double check any factual representation made to him.

For example, the WaPo article that Jane talks about below indicated that Adam Levine (a former Rove aide) had been re-interviewed and that he spoke about talking with some of the Wilson's neighbors. Well, there's a fact they might want to double-check right there, isn't it? (UPDATE: Per PollyUSA's comment, I re-read the WaPo paragraph and I'm not certain that it indicates that Levine talked with neighbors. But I'm not ruling it out. Maybe they will clarify-- I sent an e-mail asking for clarification and will report back if I get it.) And if Rove or some other witness made other statements of fact, they'd be out checking those as well. I mean, honestly, would you take any of these people at their word at this point? Yeah, I thought not.

Some great resource pages on grand juries, indictments, etc.:

* University of Dayton Federal Grand Jury Resource Page

* ABA Grand Jury Resource Page

* Law Info Grand Jury Resource Page

Also, some great information always on TalkLeft, Mark Kleiman, and a whole lotta other blogger pages that deal with legal issues.

(Graphics love to Physics News Graphics for the intriguing map of "A sequence of photos showing how a model polymer, made of tiny balls connected by rods, can untie itself when being shaken. Science. So infinitely cool.)

UPDATE: Still waiting on a call back on verfication on jury information. Something tells me that no one will be answering any questions until tomorrow. Sorry gang -- wish I could be more precise on the extension/non-extension possibilities question.

I'm also adding this from the comments. OtisIsHungry's practice is a much more Federal-centric one than mine was -- I was a State prosecutor and when in private practice did some, but not exclusively, Federal criminal appointments. This is useful information and I wanted to be sure that it didn't get missed in the comments. Otis said:

Couple piddlin' picky points:

RH wrote: but they do not have to be charged in order to enter a guilty plea. A prosecutor also has what is called an "information" in his arsenal as a means of charging a defendant with a criminal charge outside of the grand jury process. (RH: That's what I get for trying to shorthand this information too much for everyone.)

Otis responds: The 5th Amendment requires no one can be put to trial for a federal felony unless they've been charged by Indictment, however, a defendant may waive that right in Federal court and plead to a felony charged by prosecutor's Information. So, unless there is already a deal-- a signed, sealed and delivered deal-- anyone charged in this case will first be in an Indictment, which may later be dismissed in favor of a plea to a reduced charge in an Information, or, more likely, a flipper will be allowed to plead to a lesser liabilty count originally included in the indictment, and the rest will be dismissed. Salient point-it is always possible that there are deals (plea agreements) struck and signed and filed under seal. Cooperators or flippers can be useful at trial against anyone who still hasn't caved and is going to trial, not just for testimony in the GJ. After the GJ is finished, there will still be flippers getting deals.

RH said: say, if you have 5 people involved in a conspiracy, there can be 5 separate indictments, one for each person. (This is where my State experience and the Federal rules differ and I failed to differentiate that in my post. Sorry!)

Otis responds: Federal rules for joinder (FRCrP 8)say ,"no." One conspiracy= one indictment, no matter how many defendants; however, defedants or substantive counts in the indictment may get severed for trial for various & particular reasons not relevant now.

RH said: In my experience, the people who complain about a prosecutor being creative are criminal defense attorneys and family members of the people indicted.

Otis says: In my experience, a conservative is a liberal who hasn't been indicted yet! ;-)

UPDATE #2: For those looking for some great information on Plea Agreements/Deals, Jeralyn has a great post on the subject on TalkLeft here. Here's to many plea agreements -- for that will mean many defendants. Get your deals while they still exist.