Kevin Sali: A Cold War Era Example of the Need for Grand Jury Transparency
Thursday, July 23, 2015
Julius and Ethel Rosenberg via Wikimedia CC.
It’s the case that just won’t go away. In 1951, Julius and Ethel Rosenberg were convicted of conspiring to give Soviet officials top-secret information about the atomic bomb. Both were executed in 1953. Since then, their case has remained controversial. Virtually everyone now acknowledges Julius’s guilt, but there are serious questions as to whether Ethel was guilty of a crime—at least one deserving the death penalty.
These questions have been revived in recent years by the disclosure of prosecution witnesses’ previously sealed grand jury testimony. In 2008, a federal judge ordered the release of most of that testimony, excepting only that from witnesses who were still alive at the time of the order. One of those surviving witnesses was David Greenglass, Ethel Rosenberg’s brother and a critical prosecution witness at her trial. Greenglass died late last year, and his grand jury testimony was accordingly released earlier this month.
As expected by many, this release has provided support to those with concerns about Ethel’s trial. In particular, the transcript reveals that Greenglass said nothing to the grand jury about the most devastating part of his account—that Ethel allegedly typed up a set of notes that ended up in Soviet hands. This omission, along with similar discrepancies revealed in the 2008 disclosures, has reinvigorated concerns about Ethel’s trial and her subsequent execution. At the time of the trial, neither Ethel nor her attorney was told that these witnesses had changed their stories, and the jurors that convicted her never had the chance to consider this fact in weighing those witnesses’ testimony.
The revelations have largely been relegated to the realm of historical curiosity—not only because of the length of time that has passed, but because the legal regime has changed in a significant way. Not long after the Rosenberg trial, Congress passed the “Jencks Act,” which provided (largely in response to a Supreme Court ruling) that a witness’s grand jury testimony must be provided to defense counsel after the witness testifies at trial.
Now, if a witness testifies at trial, the defense attorney can compare that trial testimony with the witness’s grand jury testimony, and ask about any differences. Had this statute been in place at the time of Ethel’s trial, her attorney could have asked Greenglass why this obviously critical fact never came up during his grand jury testimony. Perhaps he would have had an explanation that would have satisfied the jurors. Perhaps not. In any event, those jurors would have had the benefit of information that was clearly relevant to their assessment of Greenglass’s story (a story that Greenglass himself subsequently recanted several decades after Ethel’s execution).
Again, though, this is largely an academic discussion. Historians and the Rosenbergs’ descendants may still care about Ethel’s trial, but it’s no longer significant to those of us concerned with the criminal justice system, whether here in Oregon or elsewhere. The law has been changed, so the distortion of the truth-finding process that took place in Ethel’s case simply couldn’t happen today.
Well, actually . . . that’s not entirely correct. It’s true that if Ethel were prosecuted today in a federal court in Oregon, her attorneys would have access to transcripts of the prosecution witnesses’ grand jury testimony. But if she was prosecuted across the street in a state court, her attorneys would be left in the dark. Although the law in theory requires the disclosure of prior testimony and other statements even in a state-court prosecution, Oregon prosecutors have essentially nullified that requirement by generally refusing to record or transcribe grand jury proceedings so that there is little if anything to disclose. And despite widespread criticism of this practice and broad support for reform, many Oregon prosecutors continue to oppose efforts to require the recording of grand jury testimony. Perhaps as a result of this opposition, the grand jury reform legislation has stalled in the legislature.
There is no longer any legitimate, credible reason for keeping such a fundamental part of the system in the dark. Although there are undoubtedly valid concerns over witness safety within the criminal justice system, those concerns are far less prevalent than one would think from reading prosecutors’ statements of opposition to reform legislation. (As a criminal defense lawyer, for example, I can confirm that although motorcycle gangs obviously exist, they tend to show up more frequently in prosecutors’ op-ed columns than in actual cases.) To the extent that grand jury recording in fact increases risks to witnesses beyond those already in place based on prosecutors’ existing duties of disclosure, there are obvious solutions such as the redactions and protective orders already available for other disclosed information.
It’s long past time to correct this fundamental defect in Oregon’s criminal justice system. The lack of any reliable record of grand jury testimony is an antiquated holdover from the days in which the system was essentially entrusted to the good faith of prosecutors, whose discretion in deciding whom to charge was understood to extend also to deciding who got to find out what.
I would like to believe that most prosecutors here in Oregon truly want to see justice done in their cases. I would also like to believe that they recognize that openness and transparency are ultimately much more likely than secrecy and resistance to advance that goal. I invite those prosecutors to join the growing consensus in favor of grand jury recording in Oregon.
Related Slideshow: The 20 Most Effective Legislators in Salem
GoLocalPDX analyzed the success rate for bills put forth in the 77th Legislative session -- in the 2013 long session, and the 2014 short session. Legislators were ranked on what percentage of bills they introduced passed into law during the session.
These are the 20 Oregon lawmakers with the highest bill success rates.
Note: This metric does not reflect the ranging complexity of bills introduced.
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