GRAND JURY WITNESSES NEED RIGHT TO COUNSEL


Ralph E. Shaffer
Walter P. Coombs


   It's now abundantly clear why the district attorney on NBC's acclaimed "Law 
and Order" bears the same name as a Burbank senator.  In his zeal to catch the 
bad guys, the real Adam Schiff led the opposition to a bill that would force 
the D. A.'s office to respect the rights of at least some grand jury witnesses.  
While recognition of those rights is long overdue, Schiff, a former federal 
prosecutor, should have fought the bill on grounds that it doesn't go far 
enough toward rehabilitating a badly flawed grand jury system.

Now on the governor's desk is a grand jury "reform" bill designed to satisfy 
one vindictive Republican assemblyman but which falls far short of the much-
needed resurrection that this moribund institution needs.  AB 527 would allow 
the target of a grand jury investigation to be accompanied into the hearing 
room by an attorney.  Under current law, grand jury witnesses may not have an 
attorney present but may consult with their counsel in an antechamber during 
the course of the district attorney's questioning.

Orange County Republican Scott Baugh, the target of a recent grand jury 
investigation, wrote the bill in a fit of pique.  Instead of wording it so that 
ALL witnesses could have an attorney present if desired, he limited that right 
only to those who were the targets of the investigation and who might face an 
indictment.  The truly innocent are left to twist in the wind.

Very few witnesses are the actual targets of an investigation, but even those 
who have done no wrong are awed and overwhelmed by the physical presence of 23 
jurors and a couple of deputy district attorneys who in most cases are seasoned 
prosecutors.  Rarely are witnesses accompanied by a lawyer.  Most probably 
couldn't afford one, and even if a witness did hire an attorney it is both 
cumbersome and embarrassing to ask for a recess to meet with counsel in the 
hallway.

On one occasion when a witness showed up with an attorney a deputy D. A. asked 
why he felt it necessary to have a lawyer present.  That's the kind of question 
the fictional Adam Schiff and his ace prosecutor Jack McCoy, who enjoys 
badgering witnesses, might ask on "Law and Order" but one doesn't expect to 
hear it during a grand jury proceeding in California.  Nor is it likely that 
someone as concerned about civil liberties as Sen. Schiff would have asked it 
as a prosecutor.  But the question is asked, and it both intimidates the 
witness and prejudices the jurors.

That's why the right to have counsel present, for all witnesses, ought to be 
guaranteed by statute.  Schiff's objections to Baugh's bill ought to be have 
been based on its failure to provide that guarantee, not on grounds that it 
will hamstring prosecutors and protect "white collar" suspects such as Baugh.

Grand jury proceedings in criminal cases are a carefully structured inquiry, 
orchestrated by the district attorney's office.  Witnesses appear at these 
hearings because they have been subpoenaed in the name of the grand jury.  But 
former jurors know that it is the D. A. who is investigating and asking the 
questions.  Jurors are expected to be a compliant audience, and they usually 
are.

Even when witnesses are badgered to a point that some jurors squirm, they must 
remain silent.  They can't interrupt to ask questions, let alone to caution the 
D. A.  On rare occasion a juror will come to the relief of the witness by 
signaling to the foreman that it's time for a bathroom break.  Were witnesses 
allowed to have counsel present, such tactics would be unnecessary and 
harassment of witnesses by prosecutors would be less likely to occur.

Regardless of what the governor does with AB 527, the legislature should 
reconsider the issue.  Baugh's unnecessarily restrictive right to counsel 
should be broadened so that it applies to all who are called before the jury.  
Once that injustice has been corrected, the legislature can then deal with the 
many other deficiencies in the grand jury system.

                             - - -

(Walter P. Coombs and Ralph E. Shaffer are professors emeriti at Cal Poly 
Pomona.  Both were members of the 1993-94 Los Angeles County Grand Jury.)