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October 22, 2012


John Q Publique

It is to be hoped that the Supreme Court will take this case. Henry Hyde offered his eponymous amendment after having personally experienced abusive Department of Justice tactics that are all too familiar to the criminal defense bar. Hyde was a Congressman, however, and in a position to do something about it.

Unhappily for others who have suffered similar treatment, the courts have chipped away at the Hyde Amendment -- imposing, for example, high burdens of proof of subjective evil intent on the part of prosecutors that erstwhile criminal defendants and their lawyers are not likely to have or find. Now the 11th Circuit says that a Grand Jury indictment represents a "Kings-X" against any suggestion that a prosecution was in bad faith.

Setting aside the obvious point that prosecutions having a foundation in probable cause can be so abusively pursued as to be in bad faith (consider the case of the late Sen. Stevens, as to whom the DOJ had a colorable case but from whom it withheld significant evidence that completely impeached its key witness), the premise on which the DOJ presumably bases its argument (that grand juries operate independently, and their indictments represent the imprimatur of approval of an impartial decisionmaker)is not tenable in light of the recent history of grand jury practice.

The DOJ persuaded the Supreme Court in U S v Williams that it had no duty to present exculpatory evidence to grand juries. So a grand jury's actions cannot be seen as an endorsement of the good faith of a prosecution; they are no more than judgments that the minimal standards of probable cause are met in cases where a true bill is reported. Henry Morganthau, a prosecutor of great stature, observed that a prosecutor can get a grand jury to indict "a ham sandwich", and at Rocky Flats the DOJ proved it is not really devoted to the principle of grand jury independence (see

There is very little available by way of effective checks on federal prosecutorial misconduct. State disciplinary authorities rarely involve themselves in such matters (often on the mistaken assumption that prosecutorial misconduct is routinely corrected by the trial courts). The DOJ's Office of Professional Responsibility does not appear to be a very aggressive watchdog. It is a healthy thing if the DOJ fears the Hyde Amendment; it is to be hoped the Court rebuffs the 11th Circuit's effort to further limit its utility.

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