Prosecutor's Misconduct Revealed in Grand Jury Transcripts

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1:38You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. Public criticism of Chicago federal prosecutors reached a tipping point when the prosecution of four anti-ice protesters imploded after revelations of serious misconduct at the grand jury and an apparent effort to cover it up. Judge April Perry said her trust in government attorneys had been broken and indicated that sanctions against the prosecutor could be appropriate. And now that the grand jury transcripts have been revealed, the full extent of the federal prosecutor's misconduct has shocked legal experts and led to questions about the motivation for bringing the charges.

2:26My guest is Rick Simmons, a professor at Ohio State's Moritz College of Law. Rick, we heard broadly from the judge about the misconduct involved in this grand jury proceeding. What was your reaction, though, when you read the actual transcripts of the proceedings? To be honest, when I actually read the transcript, I was pretty shocked. I read a lot of the news articles and what the judge has said about the grand jury and what the conduct was in the grand jury. But I did not realize the extent of the misconduct by this prosecutor. So people who have not been in a grand jury might not understand what the rules there are.

3:04The prosecutor is supposed to essentially just set out the facts through witnesses and then charge on the law, which is essentially reading the law to the grand jury. And that's pretty much it. there's not supposed to be an opening argument, a closing argument, any kind of opinion about the evidence should say. You can have standard instructions about, you know, that they're allowed to make logical inferences, but it's not supposed to tell them what those inferences should be. And this prosecutor broke pretty much all those rules. She had a opening argument, a closing argument. She essentially told the grand juror, or at least suggested very strongly, how the grand juror should interpret the evidence here.

3:43And none of that is appropriate in a grand jury setting. So that's the first thing that struck me as the extent of how much this prosecutor essentially argued a case to the grand jury, which is not supposed to happen in that context. And the prosecutor, Sherry Mecklenburg, told the jurors, I know you and I trust you and you know me and you trust me. And I would never ask you to chart somebody if I didn't think there was probable cause. What's wrong with that? That's a second level of misconduct. So even in a trial jury, you're not supposed to put your own personal opinion into the jury's sort of minds about this.

4:17So you're not supposed to personally vouch for a witness or vouch for a case. The case is supposed to be about what the evidence shows and what the jury can conclude from the evidence, not based on whether they trust one of the attorneys or not. So you're never supposed to, in any context, tell the grand jury about your own personal opinion and how they can trust you about certain things being true, any judge would strike that from the record if it happened in a grand jury or a trial jury. And then the other level, of course, of what happened here was when she excused or kicked out one of the grand jurors because he was not willing to go along with what she wanted, a prosecutor does not have the power to do that in a grand jury.

4:53The grand jury is a creature of the court. The judge is the one that impaled the grand jury. Only a judge could kick someone off for misconduct. So the fact that the prosecutor did that is also improper and illegal. So there was a first appearance before the grand jury and they declined to return an indictment. Then at the second appearance before the grand jury, the grand jury you were talking about said, I heard this case last week and I thought it was a crock of blank then and I still think it is. And she just dismisses him from the grand jury. I mean, have you ever heard of a prosecutor saying to a jury, go away if you're not going to side with me.

5:30No, I've never heard that before. Now, the prosecutor tried to make that sound appropriate by saying, well, do you have an open mind? If you don't have an open mind, you shouldn't be in the jury. And that's true for trial juries. If when you're voirdeering a trial jury, if someone says they can't have an open mind about the case, a judge will excuse them from the jury. And so the voirdeer process will take care of that. I've never heard of that happening before in a grand jury. And again, the prosecutor doesn't have that power anyway. So just to be clear, it is legal. It's unusual, but it's legal for the prosecutor in the federal system to represent a case after it's been rejected.

6:07You can bring in new evidence and you're allowed to do that if you want. So there's nothing improper about that, but it is improper to basically the second time around if grand jurors say, I still don't think this case is indictable to say, okay, we can leave the room then and you're done. That's It's completely unprecedented as far as I know. So then when she presents it a third time, the time she actually gets the indictment, that's after the U.S. attorney has addressed all three grand juries. Right. It's not unusual for the U.S. attorney, that's obviously the head attorney for the whole district, to come in and talk to grand juries when they're impaneled and to talk about their role.

6:44I suppose it's not improper necessarily for them to sort of remind them of the role once in a while. When the U.S. attorney does that specifically to a grand jury that has just rejected this case, is about to vote on the case again, it sends a pretty strong message that the U.S. attorney doesn't think they're doing the right thing. So, again, what the U.S. attorney said, the actual words aren't particularly improper, and that's something the U.S. attorney might say at the beginning of a grand jury term. But given the context of what this grand jury has just done and what they're about to be asked to do, there was a pretty clear message, I thought, when the U.S.

7:21attorney comes back to that grand jury in the middle of their term and gives them this instruction, the U.S. attorney is telling them what they should do, which is to indict this case. So in that context, that was also something that was highly unusual. And the U.S. attorney, Andrew Boutros, ended up revealing the transcript of what he said to the grand juries that day. Part of what he said, which I question is, if there's anyone here who is struggling with a certain type of case, such as the immigration cases or other cases where they do not believe that they can set aside their personal emotions, that they cannot listen and deliberate honestly and objectively, I would like you to raise your hand and identify yourself because we have a different procedure for that.

8:06Does that go too far? Again, in this context, it does. So when you first impanel a grand jury, it's appropriate to tell them they should keep an open mind. It's appropriate to make sure they know that if they have a certain kind of case that's problematic to let them know. And there's a procedure you can go through which would involve a court, a judge, not just the executive branch, you know, U.S. attorney prosecutorial body. There is a procedure at that stage at the very beginning. When you're in the middle of hearing cases, that is not something that you would do because it's sending a signal about what you want them to do in a particular case.

8:37Also, the grand jury, people should realize, grand jury plays a different role than a trial jury does. A trial jury is meant to simply hear the evidence and then vote to convict or not convict based on the evidence and the law, and that's it. A grand jury is supposed to be more of a screener and not just a legal screener to show there's probable cause to indict, but also supposed to act as a conscience of the community. in a sense. They're not required to indict if there's probable cause. They may indict if there's probable cause. They almost always do. But if for equitable reasons or any other reasons they believe that they shouldn't indict, they are perfectly allowed under the law to not indict a case.

9:13And so if they think that immigration cases have gone too far and that they should indict cases that involve immigration, at least cases that are borderline involving immigration, it is completely their right not to do so. They don't have to indict when there's probable cause because they think that for equitable reasons, this is not a case that should be indicted. So I think that the U.S. attorney there misunderstood or essentially was not thinking about the actual role of the grand jury. The grand jury is meant to sort of be a check on the prosecutorial power, not just legally, but also, again, a more equitable sense to make sure that the power is not being abused or used in a way that the community think is inappropriate.

9:49Another thing that the line prosecutor did, which I've never heard of this either, and I don't know how you think you could get away with it. she admitted that she had substantive conversations with grand jurors outside the grand jury room. Yeah, that was also surprising. She did admit to that, you know, in the grand jury transcript, and she admitted to the judge later. I think everyone knows you're not supposed to have ex parte communications outside of the courtroom or the grand jury room while the case is proceeding. It can be awkward. I'll admit, I mean, I've been a prosecutor and you see a grand jury in the elevator or a trial jury in the elevator while the case is proceeding.

10:22It can be awkward. You talk to you, you have to sort of shake your head and just say no and move away. They should know that they can't talk to them. And maybe if that does happen, then on the record, next time you see them all say, just so you know, I can't talk to you outside of this courtroom. That's not permitted. There are rules that say you're simply never allowed to do that. So it's something that every trial attorney knows. And so the idea that the prosecutor did that is also very, very surprising. I'm not sure how much that affected the case. I don't know the content of the conversation, but that's the entire point.

10:56We don't know the content of the conversation. It wasn't on the record. And so it was also inappropriate. You know, there's one thing after another. When the judge asked for the transcripts, initially asked for the transcripts, the prosecutors redacted some of their behavior from the transcripts. Yeah. I mean, so just again, so people understand, grand jury proceedings are meant to be confidential. So they're generally not released to the public unless it's an extraordinary case. But the judge who impaneled the grand jury is supposed to be able to review that grand jury transcript. Now, there are very few reasons when a judge would find problems with that.

11:33A judge almost every second guessed the probable cause of termination of a grand jury. But part of the judge's role is to review that transcript. And there's no reason I can think of why you would redact something from the trial judge. If it's being released to the public, you know, there's names of confidential informants in there or names of an accused who wasn't indicted. We have to keep them secret so they're not reputations not harmed. I could see that. But this was just, I think the judge of that stage was asking to review it, you know, in chambers just by the judge. So I don't see why that should be redacted.

12:07I think that redaction was another sign the judge saw that something is not exactly right here about what's going on. Why are things being hidden from me? Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Rick Simmons of Ohio State's Moritz College of Law. How the prosecutorial misconduct here moved prosecutors to dismiss charges against two defendants in a fraud case where there were similar allegations of misconduct by the prosecutor. It's also led defense attorneys to ask for transparency in other matters handled by her. A Chicago federal prosecutor went to a grand jury room last fall and told grand jurors she was sure they had enough to indict anti-Ice protesters accused of blocking a federal agent's vehicle.

12:56Assistant U.S. Attorney Sherry Mecklenburg told the grand jury in October, I know you and I trust you and you know me and you trust me and I would never ask you to charge somebody if I didn't think there was probable cause. Federal Judge April Perry later described those statements as vouching, improperly assuring grand jurors about the strength of the case. That, along with other irregularities, including Mecklenburg's abrupt dismissal of a skeptical grand juror and communications with members of the grand jury outside the jury room, are detailed in the grand jury transcripts, which shed light on the proceedings that are normally kept secret.

13:38I've been talking to Rick Simmons, a professor at the Moritz College of Law at Ohio State University. So the Chicago U.S. Attorney's Office has moved to dismiss charges against two defendants in a fraud case after a judge called for an evidentiary hearing to examine similar allegations of misconduct by this prosecutor, Mecklenburg. And a third judge said she'd examine grand jury transcripts in a case Mecklenburg presented to a grand jury in 2019. What about defendants that have been convicted already? Could they be set free because of prosecutorial misconduct? I mean, what are the remedies here?

14:19That's an interesting question. The remedy is tougher because once you have a conviction, so again, the grand jury is meant to decide if there's probable cause to move forward. Once you have a conviction, the theory is you've proven the case beyond reasonable doubt, not just by probable cause. So it's hard to find a remedy there. So as a counterexample, if, for example, evidence was brought in that shouldn't have been brought in or there was a problem with the forensic lab and there was bad evidence coming out of the forensic lab and the trial jury heard all that and convicted, then you could certainly overturn the convictions because that evidence was tainted.

14:51In the case where the trial jury didn't rely on the grand jury indictment for evidence in any way, so the conviction does in theory cure that mistake. As far as sanctions being brought against this particular prosecutor, that would be a reason to look into this as well, see if that could be a reason. But also moving forward, I think it shows that the judges now in this district are going to take hard looks at all the indictments, all the grand jury proceedings that are happening to ensure there's no further misconduct that might happen. So it really does break that trust that federal judges generally have of U.S.

15:31attorney offices, that they assume they're going to be not just following the law, but also following the norms and doing things that are appropriate. So I think not only going backwards are there going to be some reviews, but also there's going to be much stronger review of cases moving forward because they've lost that trust. Yeah, so more than 100 former prosecutors in Illinois signed a statement. They raised concerns about what's happening in the office and the leadership by this U.S. attorney. There are also some senators that are calling for him to resign. But they said that there's an increasing lack of trust from judges.

16:07And the judge in this case, Judge Perry, said she'd lost her faith. Yeah, I'm not surprised by that. I think the Department of Justice in general, and I'm sure this office specifically, has been able to do things more efficiently, get better convictions, get indictments more easily because there was that trust. because the, again, the Department of Justice had up until recently a very strong, probably the strongest reputation for integrity and for following the rules. And I think the long-term follow-up of this, I guess ironically, is that it's going to be much harder for them to do their job getting indictments, getting convictions because this judge and I think other judges in this district and frankly, I think around the country are losing that trust.

16:51And so they're not going to scrutinize the U.S. Attorney's conduct much more carefully because they don't have that ability to believe that everything that's been happening is appropriate. I mean, federal prosecutors in the Trump administration seem to be disproving the long-held legal theory that a prosecutor can get a grand jury to indict a ham sandwich. That's right. I mean, they are failing to indict juries in not only Chicago, but D.C. and L.A. are failing to indict. And I'm wondering, you know, what you think the cause is. Is it a lack of trust? Is it the kind of cases that are being brought?

17:28Like in D.C., they wouldn't indict in the case where six lawmakers made that video statement about soldiers not having to obey demands that are illegal. Well, I think there's a few things going on. I think that the lack of trust is the last thing that happened. I think that lack of trust is now happening because these cases are being rejected by grand juries. I think two primary things are happening. One is cases that are being brought which really aren't strong enough to indict, where there's so much eagerness to indict a case where the facts aren't really there to indict, that you're seeing grand juries looking at and saying, actually, I don't think that this is appropriate based on the law.

18:07And also related to that, cases are being brought, at least in many people's opinions, for political reasons against political opponents. And that's exactly what a grand jury is supposed to do. They're supposed to identify those cases and question them more severely and then not indict if it's mostly a politically motivated prosecution because politics should have no part of who gets indicted and who doesn't. So once you start bringing in cases that are very, very weak and bringing in cases for what are pretty evidently political reasons, then grand juries are going to refuse to indict. That's going to then lead to a loss of trust.

18:43And more and more judges, especially, are going to be questioning what the Department of Justice is doing. And I suppose the more we see these kinds of cases in the media, then people in grand juries will also say, OK, well, I guess we have to think twice about all the cases being brought to us. And so you might see, again, more instances of this happening where they don't indict. So again, I suppose it's ironic, but by being so aggressive, by trying to get so many more indictments, it's actually going to hurt them down the road trying to get indictments. I also want to just say one thing is that in the Department of Justice overall, the U.S.

19:15Attorney's Office, they're indicting probably hundreds or thousands of cases every day. And many of them are hardworking line prosecutors that are just trying to indict people who deserve to be indicted. We're seeing the high-profile cases where there are certain members of the Department of Justice that are overreaching. I don't want to paint the entire Department of Justice, all the federal prosecutors, as being overly aggressive and political. But it only takes a few, and then the media, understandably and correctly, starts to focus on those to have everyone lose space in the entire system.

19:47It's unusual because prosecutors will usually get a grand jury to indict. It's unusual to bring the same case before a grand jury two and three times? Yeah, it's very unusual. Again, it is legal to bring the case again to a grand jury. You're allowed to represent it as many times as you want. But it's unusual only because, first of all, as you said, the case should be strong enough the first time. So it's very unusual not to get an indictment the first time. And if you don't get an indictment, what usually happens, you go back to your supervisor and the supervisor says, what went wrong? Why didn't you get an indictment?

20:19And for you to say, no, no, I'm going to try it again and use all those resources, is you have to sort of convince your supervisor what went wrong and how you can fix it. I think most prosecutors on their own would say, okay, this case is too weak. And if not, then the supervisor would tell them it's too weak. Don't try this again unless you have a lot stronger evidence. And so you would just drop the case at that point. So the system, the institution is supposed to work that that is a rare thing to happen. If the case was so weak, you couldn't get it the first time, you're probably not getting it the second time.

20:49And so why are we going to waste our time with it. Grand jury secrecy. I don't know how initially, you know, the defendants found out that there were problems with the grand jury, but grand jury secrecy, you know, is said to be all important. But does this show that perhaps grand jury shouldn't be so secret or am I going too far? Well, I don't think you're going too far. So many people certainly in the Academy, you know, writing like I'm writing, have said that grand jury secrecy is a sort of vestigial, outdated rule that we have that doesn't really apply anymore. So even before this new wave of cases where we now have reason to mistrust what the prosecutors might be doing the grand jury, even before that, people questioned the need for grand jury secrecy.

21:37So the main reasons for it were one, to avoid witness tampering or witness intimidation. We already have laws in the book to prevent that. That's never been something we think is widespread. We also, they say they want to prevent the essentially damaging reputation of people who might be investigated by a grand jury or where someone might be, they might try and charge him, but they don't. And so they want to save his reputation who's not indicted. But since so many people are indicted, I mean, again, it's a 98 % rate generally. It doesn't really apply in that case that we have to protect those names.

22:10So there's not really strong reasons that we still have today for having to keep the grand jury secret. And given this kind of misconduct that we're seeing, I don't think that it's something that we should keep going. There are state grand juries that don't have those kind of rules. Some of them have sunshine laws that allow you to see the grand jury transcripts at least once the case is over. And there's never been any kind of problem that I can see when that happened. In fact, ended up increasing the quality of the grand jury proceedings and making the legitimacy of the body stronger so people can see what's happening there and understand the grand jury better.

22:46So I think it probably was time to end the grand jury secrecy even before this, and it's just another good reason to do so. Well, we haven't heard the last of the ramifications from this case, that's certain. Thanks so much for joining me, Rick. That's Professor Rick Simmons of Ohio State's Moritz College of Law. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m.

23:22Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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