Tuesday, December 15, 2015

Lost Grandeur of the Grand Jury

   Free at last!
   It's sixteen months since I was placed on a federal grand jury which, I soon learned, is as hard to get off of as a regular jury is to get on.
   And not for want of trying. But a panicked Google search after the summons arrived yielded discouraging results: "Answer the judge's questions truthfully," recommended one veteran, "and wet your pants."
   While many jurors are soon released because their business is suffering or for some other hardship, stories also circulated of people who were denied exemptions even if a parent was seriously ill. One woman we heard about, who'd already served two years in another jurisdiction, told the court that she would visit her father in the hospital regardless of their policy.
   "We can send the marshals after you," the court replied. She went anyway and they didn't follow through on the threat.
   I had no pressing excuse and so spent one lunch hour trying to escape the afternoon session by scouring Chinatown in vain for the fruit, durian. The smell is reputed to be so repugnant that in Singapore, it's illegal to take it on the subway.
   Some of us accepted our fate with the attitude that women used to be advised to adopt if they ever found themselves the victims of rape: Lie back and enjoy it.
   Others expressed pride in serving their country reinforced by relief that said service didn't involve risking their lives. But to me, the grand jury seemed to have morphed into another arm of an increasingly authoritarian state.
   Unlike the more familiar trial jury, a grand jury only indicts, which is to say, accuses. Our job was simply to determine whether or not the prosecutor had enough evidence, or "probable cause," to bring a case to trial.
   Thus, the cliché that we served as both a sword and a shield. Sword, for obvious reasons: Without our approval, the prosecutor couldn't proceed. On the other hand, supposedly, we prevented the prosecutor from getting carried away and embarking on personal or political vendettas.
   However, in a world where the state has ever bigger guns at its disposal, the shield aspect has grown rusty to the point of obsolescence.
   The only reference in our handbook to this function says that the grand jury "protect[s] citizens from unwarranted or inappropriate prosecutions."
   But how are we to protect our fellow citizens if the only entity providing information to us is the prosecutor?
   It's true that the target of investigation is allowed to appear at grand jury proceedings unless, of course, he's considered a flight risk in which case he probably hasn't been informed of them. But no one ever did.
   Into the resulting vacuum rushed a flood of damning evidence. Or a trickle; since we only heard one side of the story, it hardly mattered. In the absence of contradiction, present the account of only one government official (or even, though more rarely, one lay witness,) and tada! You have your probable cause.
   For this among other reasons, "[s]ome lower federal courts... express concern that the grand jury is used as a 'pawn' or 'mere tool' of the prosecution."  
   For behind the official account, there always lurked the question: How was it obtained?
   How often were we told by Special Agents of one three-letter agency or another (no agents who testified to us were ever ordinary) of targets who, for reasons that remained unclear, "waived [their] Miranda rights?" What were the circumstances of such inexplicable cooperation with law enforcement when "anything you say may be used against you?"
   Grand jury protocol required us not to worry our pretty heads about that. And despite headline news of police misconduct from Ferguson to Eric Garner and Tamir Rice; and despite the fact that, "[t]he Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000," by and large, we didn't.
   A series of cases from United States v. Phillips Petroleum Co. in 1977 to the Supreme Court case, United States v. Williams in 1992, hold the prosecutor responsible for divulging exculpatory evidence in various situations.  However, on the assumption that any untoward behavior on the part of federal or local officials would all come out in the wash, i.e. at trial, we invariably slapped another ham sandwich with what was, after all, "only" an indictment.
   Yet "once a defendant has been indicted by the grand jury, the courts have only limited ability to dismiss the indictment for prosecutorial misconduct."   
   In other words, we operated on the premise: Let the target's defense attorney deal with any constitutional violations, although it probably won't work.
   A corollary of this policy is that we were also not informed about forfeiture allegations.  Thus we carried on in blissful ignorance of the fact that according to the Cato Institute, the federal government was given a D grade for its forfeiture laws and "other measures of abuse." 
   Unlike a trial jury, except when we were hearing evidence for a case about to hit the papers, we were under no constraints to avoid the media or Google searches of any subject we might fancy. And I sometimes took advantage of this respite from an atmosphere that was otherwise so hermetically sealed as to rival that of the Vatican. But here's the rub: Whatever we might find, we couldn't share with our fellow jurors. And since grand jury proceedings are nothing if not secret, let's just say, I learned that the hard way.
   If we wanted to "raise an issue" of, for instance, possible irregularities in official behavior, we were supposed to take it up separately with the attorney in the case.
   You can imagine scenarios where such a rule might not serve the public interest. If there's reputable evidence that a witness may have twisted the facts, isn't reporting solely to the prosecutor a tad like informing the fox how much the farmer might know about his modus operandi?
   The ambivalence of this instruction is also a head-scratcher. If it's OK for one juror to possess information, why not the others?
   But the shield function is not the only aspect of grand juries which seems to have become history.
   Deriving from the British court system, during colonial times, the grand jury protected residents from royal persecution.  It's this background that led to the inclusion of the grand jury clause into the Constitution. Following independence, grand juries were also supposed to serve as eyes and ears in their own neighborhoods (some of us commuted two hours each way from Westchester) suggesting cases for the prosecutor to investigate. But they not only extended the reach of the prosecutor; they also acted independently. Thus it was a grand jury that used its clout to expose the alliance between Tammany Hall and mobster Dutch Schultz.
   These days, they don't talk about that in the edifying videos they show you before you start your service; the ones that are supposed to make you feel as though the founding fathers are smiling down upon you benevolently like patron saints of patriotism. And they certainly don't instruct you on your ability, even your duty, to guide prosecutorial discretion. 
This vital function, too, seems to be considered passe.
   Yet it's the true elephant in the living-room. For the pursuit of street hoods, however wicked they may be, pales in comparison to the massive criminal enterprises which elude prosecution or severe punishment. To cite only two of many examples: Why did the SEC ignore for so long the warnings of Harry Markopoulos about Bernard Madoff?  One of their number even wound up marrying Madoff's niece. And why did UBS get off with mere probation for rigging a $5 trillion-a-day foreign exchange market?
   We are living the truism: Those who do not know history are condemned to repeat it.
   I called the jury office before publishing this article.  While in communication with an unnamed attorney, the long-suffering clerk reported that although I had the right of free speech, they "didn't encourage" me to publish the article because of "the secrecy surrounding the grand jury."  What's the radius of that "surrounding" circle of secrecy?  If it extends beyond the details of particular cases to the actual process, then for whose benefit does it exist?  I laid out the misgivings expressed in the article and asked if, apart from "discouraging" me, the prosecutor's office knew of any law that publication would violate.  The clerk repeated the attorney's generality and asked for my name and number, which I gave her.  No one followed up. 
  As Stalin said, "One death is a tragedy; a million is a statistic." As long as we focus on the trees, (the corner drug dealer, the illegal immigrant et al.) the toxic forest will be permitted to continue to grow undisturbed.
Jenna Orkin is the author of Scout: A Memoir of Investigative Journalist Michael C. Ruppert, with Against the Dying of the Light

Wednesday, July 22, 2015

Let Us Now Praise Famous Men and Our Fathers That Begat Us

by Jenna Orkin
(reprinted from Father's Day, 2010, in commemoration of the death of Edgar Doctorow, gentleman, scholar, good friend, wonderful writer)

Sometimes I think about my father in that pointless way one thinks of the dead:  "What would he say about what I'm doing now?"  He had a strong journalistic streak himself; like many in his writing circle, revering the profilist, Joseph Mitchell, who was known as much for the exquisiteness of his prose as for the paucity of his output.  (Out of deference, the New Yorker set aside an office for him for many unproductive years.)

It's a pointless question because our parents, at least mine, were children of their era.  They knew that and would not have had it otherwise, any more than a fish would choose to move to Central Park South, even though it's some of the most sought-after real estate in the world.  Having lived through the Depression and the War, and having seen segregation disintegrate, they relished what Francis Fukuyama notoriously called the "end of history."  The prejudices and superstitions of their parents' countries seemed to belong to a less evolved consciousness.  Who could imagine turning back?

A few years ago, I attempted to contact two of my father's friends to let them know what I'd learned since 9/11 since it had bearing on what was to come.  These were influential, well-connected men who, if they wished, could convey the message further in the sphere of movies and letters.  I also felt these two men were the most likely among my parents' old friends to be open to what I had to say.  
The first, Walter Bernstein, might be receptive, I thought, because he'd written the screenplays, Fail Safe, about "an accidental sortie" of nuclear bombers to the USSR, and The Front, about the blacklist during the McCarthy era (of which Bernstein had first-hand experience.)  He was what used to be called "a lefty from way back" and was no stranger to the notion of corruption in high places.  Fail Safe is particularly memorable for a rare foray by Walter Matthau into serious drama, playing a general who's itching for an opportunity to unleash a nuke.

Bernstein was as kind and cordial as one might wish but his gentle assessment was, "I hope you're wrong."  "So do I," I said.

The second friend, whom I attempted to contact at an address which had worked years before, was Edgar Doctorow, the author of the novels Ragtime, about the twenties, and The Book of Daniel, about the trial of Julius and Ethel Rosenberg.  But most intriguing was his role as editor at Dial Press when they published Report from Iron Mountain, a book which professes to be a spoof but which luminaries such as John Kenneth Galbraith swore was an actual government report.  Galbraith said he knew this first hand because he'd been asked to work on it himself though he felt certain the final product was the work of either Dean Rusk or Clare Booth Luce.
Report from Iron Mountain concerns what would happen "if peace broke out."  Since war is an essential part of the economy, phoney foes would have to be concocted.  Slavery might have to be re-instituted.
Writing for the Washington Post under the pseudonym Herschel McLandress (a Jewish Scot?) Galbraith said he agreed with the book's conclusions.  He was familiar with Keynes' Post-World War I work, The Economic Consequences of Peace, which discusses the  inevitable "rapid depression of the standard of life of the European populations to a point which will mean actual starvation for some (a point already reached in Russia and approximately reached in Austria.)  Men will not always die quietly. For starvation, which brings to some lethargy and a helpless despair, drives other temperaments to the nervous instability of hysteria and to a mad despair."  Galbraith/McLandress only questioned the wisdom of releasing the report to "an obviously unconditioned public," (thus supporting this blog's admonition a couple of days ago that people have to be educated over time; you can't feed them soccer and Brangelina, then expect them to accept the notion of die-off.)
Doctorow did not respond to my letter though he'd been helpful in the past when I wrote fiction.
These non-responses were to be expected.  Doctorow is almost eighty; Bernstein over ninety.  They may have felt that even if they'd "spread the word," their efforts would have led to a dead end; the only question was when. 
At the same time, things are moving under the carpet.  We at Collapsenet know this because we are under the carpet too, watching them.   But also we are actors as well as observers, a circumstance as inevitable in life as it is in quantum mechanics.  
"Let us now praise famous men, and our fathers that begat us."
The minimal response from my father's old buddies, as well as a far more enthusiastic response from a musician friend, the late Rosalyn Tureck, who was of the same generation, confirmed my sense that the older generation wishes us well but feels relieved their time is up. 
In terms of culture, our fathers' era may indeed have been the best of times; but in terms of environment, it was the worst of times.  It's up to us to turn the ship around.  It won't be smoothe sailing after that but at least our children will have been set on the right course.   

Wednesday, June 17, 2015

Sins of Omission:  Stories the Media Overlook

Jenna Orkin, Court Dorsey (Project Unspeakable) and Rob F. (Worldwatchers.info) discuss the assassinations of John F. Kennedy, Robert Kennedy, Malcolm X and Martin Luther King as well as the environmental disaster of 9/11 and other stories distorted or shunted by the mainstream media.