Farewell to the Fifth Amendment

Grand juries are helping the government find its way around the phrase: "I plead the fifth"

Acting U. S. Attorney Richard Kleindienst speaks with reporters after a speech to the Colorado chapter of the Federal Bar Association at the Cherry Creek Inn on March 17th, 1972. Credit: Barry Staver/The Denver Post via Getty

He looked like anybody's old geography teacher shuffling up the dirt road on a sharp October morning in the Colorado foothills. He had on a formless sports jacket and tie that marked him as being out of place and was accompanied by the part-time postman and deputy sheriff of the rugged rural mountains behind Walsenberg, Colorado. The people from the commune stopped their chores and came out from the trees to form a silent circle around the two intruders and Robbert Sussman, 29, interrupted his work at chopping wood for the winter and came down the road to meet the man.

"I have a subpoena for you to appear before a federal grand jury in San Francisco," the professorial FBI agent said to Sussman, then turned around and walked down the road.

The subpoena ordered Sussman to appear within four days in San Francisco, transportation and $36-a-day living expense paid by the government. The half sheet of paper gave no indication of what or who it was about, but Sussman took it stoically, giving his son, Moon, a playful rub on the head and heading back to the house to pack.

The same scene was being repeated at a commune in Oregon; in a Public Health Service Hospital in San Juan, Puerto Rico; outside a post office in Eugene; in an electronics firm in Minneapolis; at a Sunset District house in San Francisco.

In all, 16 disparate people who had never met each other before were subpoenaed to appear before the latest of the US Justice Department's "special" grand juries convened under the aegis of the Internal Security Division of the Department of Justice. Not even the 23 grand jurors selected from voter registration rolls in Northern California's Ninth Federal District knew exactly what it was about. That was the private information of US Attorney Guy Goodwin, dapper 45-year-old chief of the elite Special Litigation Section, a sinister-sounding unit dedicated to cracking the underground Left in America.

* * *

Grand juries have been a part of the American justice system since before colonial radicals began seriously plotting against the king. Historically, they have been seen as a means of protecting the people from sudden and malicious prosecution. The grand jury, a panel of randomly selected ordinary citizens meeting in secret, is charged with weighing evidence to determine whether a crime has been committed and whether there should be indictment against a particular individual. In the federal system, a grand jury is the only means of obtaining a felony indictment. Such grand juries routinely sit in every federal district, hearing cases on income tax evasion, narcotics, trade regulations and on into a grey area of tedious criminal charges.

But, with the passage in 1970 of the Organized Crime Control Act, federal courts were authorized to set up special grand juries in any district where the attorney general or one of his subordinates concludes such a body is "necessary because of criminal activity."

To coordinate this new power, President Nixon chose the Internal Security Division of the Justice Department, a cubbyhole division that was begun in 1954, but went dormant with the demise of Joe McCarthy. The division was given new life under the vigorous guidance of Robert Mardian, conservative - minded Californian and buddy of Attorney General Richard Kleindienst. To Mardian and his division was given the task of sorting through all the laborious files of FBI reports on radical activities in America and finding cases to begin prosecution. The eager Mardian also rounded the Justice Department's Inter-divisional Intelligence Unit (IDIU) under his direct control with its maze of computerized and stored pieces of information waiting like fragments in the subversive collage he is to construct.

For the field work, Mardian chose Guy Goodwin, a Kansas City lawyer with a compulsive affection for neatness and prim habits. He is known to stand before a witness in his meticulously preened dark suit with not a hair out of place and stare haughtily down his nose through his half-frame reading glasses to demand, "Tell the grand jury, please, where you were employed during the year 1970, by whom you are employed during the year 1970, how long you have been so employed and the amount of remuneration for your employment during the year 1970...."

As was the case with other Justice Department honchos, Mardian - Colonel Mardian to his Washington friends - left his post earlier this year to join the Committee to Re-Elect the President. Mardian, who had been an eager Goldwater backer in past years, was replaced in the Internal Security Division by William Olsen, a less well-known but equally right-thinking Republican. By this time, Goodwin was too busy to himself go off campaigning for anything other than the crackdown on radicals.

So carefully organized is Goodwin and so detailed is his assortment of facts, that witnesses have been startled when he would suddenly and smugly refer to them by a nickname familiar only to their friends.

In the last two years, more than 20 grand juries have been used to investigate cases related to politically radical or anti-war activities. The best known among them are those convened over the Pentagon Papers, Daniel Berrigan, and the grilling of Leslie Bacon about the US Capitol bombing. Goodwin has not been present at all of them, but his grand inquisitor style has set the precedent and established the model for other US attorneys working with him.

The Internal Security Division, with Goodwin as its field marshal, has succeeded in stretching out the purpose of the grand jury beyond that of examining evidence on a single crime to becoming an elaborate investigative body with powers not enjoyed by the most fanatic of police agencies in America and with an ultimate threat of imprisonment that spits at the parchment that the First and Fifth Amendments to the US Constitution were written on. In one sense, the new use of grand juries as inquisitors is the grandson of the old House Un-American Activities Committee and the direct descendant of the government's failures in its attempts to prosecute conspiracy charges such as those against the Chicago Eight as a means of hammering down social protest. But perhaps the most alarming aspect of the Justice Department's grand jury tactic is that it has dodged and in effect voided the essence of the American system of checks and balances and individual rights. Grand juries have more power than the old congressional committees and many observers feel the Justice Department may have succeeded in getting around even the Supreme Court. As with the war in Vietnam, the real power in this onslaught lies with the executive and ignores Congress.

The grand juries themselves, no matter how randomly selected or how fairly composed, become as mute observers to the Star Chamber questioning of such prosecutors as Goodwin. Although the grand jurors may themselves ask questions, they almost never do, partially because even they are confused about what the government is after. Most often they sit silently listening while the prosecutor slams out his questions. At the end, their decision is usually but a rubber stamp approval of the government's intention.

There are no limits to the number of witnesses who may be called to testify before a grand jury. A prosecutor may subpoena persons almost at whim, or with a vengeance. Nor are there virtually any limits to his questions. The witness is not allowed to have an attorney with him in the room while he is being questioned, nor does he have a right to be told the object of the investigation or even if he himself may be a defendant. He is merely summoned to appear.

One such witness compared the tactic to that of the ancient dunking stool: "If you drowned, you were innocent. If you survived, you were hanged."

Witnesses, it would seem, could take shelter in the Fifth Amendment, which guarantees the right against self-incrimination. Others, particularly members of the press, might call on the First Amendment, guaranteeing the right to free speech.

Yet a grand jury hearing is not a trial, nor even a Congressional investigation. To a witness who declines to answer on grounds of the Fifth Amendment or other rights, the prosecutor responds by hauling the witness into open court to offer him immunity against prosecution. Once granted immunity, the witness must testify or be held in contempt and jailed.

But it is not so simple even as that. For years, the government has been befuddled and frustrated by the protections of the Fifth Amendment. Before becoming Chief Justice of the US Supreme Court, Warren Burger himself called openly for revision of the Fifth Amendment. The Right Wing has consistently damned it as a shield for criminals. With this in mind, Congress organized the National Commission on Reform of the Federal Criminal Laws in 1966 and placed former California Governor Edmund G. Brown at its head. When the commission submitted its report at last in 1970, one key revision recommended was in the current immunity laws. Under then existing statutes, no one could be made to testify against himself unless he were granted absolute immunity against prosecution for anything he might have talked about in his testimony. Brown's commission recommended that this protection, known as transactional immunity, be replaced with what they termed "use immunity." Under this provision, a person given immunity could not be prosecuted on the basis of his specific testimony, but he could be prosecuted for evidence that the Justice Department could show it obtained independently of the coerced testimony.

There was a flurry of protest from informed individuals in Washington, but in 1970, use immunity also became part of the Organized Crime Control Act, and last May, the Supreme Court upheld it as a replacement for the long-standing principle of transactional immunity.

No longer is anyone offered full immunity. Think about the last time you were at or around a protest demonstration. Think about being called to testify about it, under use immunity, before a grand jury building evidence for a conspiracy case such as that in Chicago. Then think about what happened to your rights to free assembly under the First Amendment and your protection against self -incrimination under the Fifth.

Tony Russo was a friend and associate of Daniel Ellsberg at the Rand Corporation in Los Angeles where the Pentagon Papers were allegedly stolen. When Russo was summoned to appear before a grand jury in L.A., in 1971, he refused to testify on grounds of the Fifth Amendment. Government prosecutors, still uncertain of their new "use" immunity, gave Russo full immunity against prosecution. Still he refused to testify. He was cited for contempt and jailed, first in Los Angeles County Jail and later at Terminal Island. Russo had said all along that he would testify in open court, but not in the super-secrecy of the grand jury. After more than six weeks in prison, most of that time in an isolation cell, Russo and his attorneys argued to Federal Judge Warren J. Ferguson that Russo would testify to the grand jury if he were given a transcript of the grand jury proceedings. Judge Ferguson found it to be an unusual case and agreed with Russo, ordering the former Rand researcher freed from jail on the condition that he would testify and be given a transcript.

Four days before he was to testify, Russo received a legal notice from US Prosecutor David Nissen saying, "The United States of America hereby notifies witness Anthony Russo, Jr. that the Government will respectfully decline to furnish him a copy of the transcript of proceedings of his appearance before the grand jury ... on the ground that the order requiring such transcript to be furnished him is unlawful and made without and beyond the authority of the Court."

Nissen also appealed to Judge Ferguson to reverse the order saying, "... if the grand jury is compelled to disclose the nature of its proceedings to the very persons it is investigating, its investigation must necessarily fail...." Judge Ferguson did not agree and upheld his order that Russo be furnished a transcript if he testified.

Not even a federal court could stop the Justice Department, however. Nissen gave up trying to get Russo into the grand jury room as a witness. Instead, he used the same grand jury to indict Russo as a co-conspirator with Ellsberg. Significantly, Ellsberg himself openly admitted to the press on the day he was arrested months before in Boston that he had delivered the so-called Pentagon Papers to the chairman of the US Senate Foreign Relations Committee.

What then, was the government after, and why should Nissen be so insistent on secrecy?

One answer is simply that grand juries have become fishing expeditions for Guy Goodwin and his Special Litigation Section--an effort to piece together little facts that may even seem unrelated to all but the monster computer humming away back at the Interdivisional Intelligence Unit in Washington.

Robert Sussman loaded up what he thought he, his wife and little Moon would need for the trip and shoved the old truck into gear, headed west across the Rockies for San Francisco. He had already contacted people from the National Lawyers Guild who have compiled information on the use and misuse of grand juries and are working on tactics to deal with the federal maneuver.

In San Juan, Dr. Phillip Craven boarded a plane bound for the Bay Area. Howard Berg was concerned about the reaction of his fellow engineers who had seen the FBI agents enter the shop to serve the subpoena, he worried over his job and the meaning of the subpoena as he left Minneapolis.

Goodwin was flying in from Washington, but as the proceedings went on, he would leave the task to his young associate, Robert Dierker, a surprisingly modish attorney with long flowing hair and wide untamed ties that Goodwin would glance at with suspicion.

In order to convene even a special grand jury in a federal district, there must have been some criminal activity committed in that district which the grand jury wishes to investigate. But none of the witnesses are told what the crime was, none of them know what questions they may be asked. Sussman drove west, his mind rolling over the days when he had lived in an urban commune in San Francisco, the people who had come by to crash for a night, the talk in the evenings over the state of the government, the moments of protest in the streets against the War. The faces of people ticking off in his mind, names he could barely remember, names he never knew. People who dropped by one day and were gone the next, people who asked to use the commune as an address to receive mail. And then he thought back to Colorado again, the commune that had taken him out of the mind-muffling pressure of the city and set him free with the environment, away from all of the scratching insanity. Away even from a radio or a newspaper. And he wondered how soon he would be going back and if it could ever again be the same.

* * *

"Name," Dierker said in a routine monotone.

"Howard Jonathan Berg." "Are you the same Howard Jonathan Berg who was subpoenaed before this grand jury."

"I assume so."

In past grand juries, the questions had sometimes been wildly aimed, seeking incredible detail from a single query. In Tucson, Goodwin had fired off such questions as, "... tell the grand jury what period of time you resided at 2201 Ocean Front Walk, who resided there at the times you lived there, identifying all persons you have seen in or about the premises, and tell the grand jury all of the conversations that were held by you or others in your presence during the time that you were at 2201 Ocean Front Walk ..." This time, Dierker at least seemed to have a finer focus. Howard Berg, as would happen with all the other witnesses, was in the grand jury room alone. His attorney waited outside in a corridor. At points. Berg would be allowed to leave the room and take the question he had written down out to his attorney for advice. "While you were residing at 5214 Farrell Avenue did you meet or speak with a male person named Frank Kline."

"No."

"Have you ever heard the name Frank Kline and, if so, by whom was it mentioned." Now Berg began declining to answer on the grounds that the question indicated use of electronic surveillance, that FBI agents had already questioned him and that the grand jury was being used as a substitute for an FBI investigation, that the question invaded his rights to privacy. He had already been granted use immunity, but he protested that and insisted still on his Fifth Amendment rights. Dierker pressed on regardless.

"Did you know the name Frank Kline was the alias of a federal fugitive?"

"I have never been so informed."

"... Do you know a female individual named Dolores Smith?"

"No."

"... Do you know Mark Rudd? And, if so, what was the last time you saw, spoke, or wrote to him or when is the last time he saw, spoke or wrote to you?"

"The answer to the first part is no, therefore the rest of the question is inapplicable."

"Did you ever visit the residence at 1038-A Pine Street, San Francisco? ... Specifically, did you visit there between March 1970 and March 1971?"

"No."

"... Has any individual discussed with you their role in the bombing of the Park District sub-station of the San Francisco Police department which occurred in February, 1970?"

"No."

Here at last was the apparent nut of the grand jury probe. One policeman had been killed in the bombing of the Park sub-station more than two years before. No suspects had ever been arrested. Even at the time, however, police and local press did not connect that bombing to the Weather underground. First, there had been no communique claiming credit for the bombing, as was typical of Weatherpeople style. Second, Park station bore no particular role to the defense industry or even police oppression that were the characteristic targets of the Weather underground. It was generally believed even by local police that it had been an isolated bombing. The intensive investigation of it had been going on for more than two years, but no suggestions had surfaced that there were any suspects--even fugitive suspects. Why then, the questions about Mark Rudd, and the apparent aliases, Frank Kline and Dolores Smith?

Dierker had a lapse in secrecy later in the proceedings.

"The person I'm after is Bernadine Dohrn," he told an attorney. "She's a clever, brilliant woman and I'm going to get her."

More than a year before, grand juries had been convened in Vermont and Detroit to investigate the New York townhouse explosion in which three Weatherpeople were killed. It netted no arrests. The Weather underground remained a blatant example of the government's frustration. The fabled FBI could not catch the heavies. What was happening now was the compilation of more little fragments for the computer. The witnesses, none of whom were likely to be indicted, were peripheral to what the government really wanted. But the questioning of them also served as a chilling warning to anyone whose life touches the left in the most remote of ways. Each still faced possible prosecution for perjury, contempt or even conspiracy.

To the next two witnesses called, given immunity and questioned, the object became more and more clear.

Dr. Phillip Craven had been on duty at Mission Emergency Hospital the night of the Park station bombing. He treated injured police brought in from the scene. Daniel Rosenberg was a part-time mechanic who worked other hours at the Sierra Club.

"Did you know that Kathy Boudin is also known as Jane Davis?" Dierker questioned.

"Did you ever visit 1038-A Pine Street?"

The mysterious two-story house sandwiched in a neighborhood of aging bay windows and sagging front stoops came up again and again. Each of the witnesses appeared surprised at questions about it. No, they did not remember ever having been there. No, they did not know who lived there. The questions about it focused on a period of time from one month to over a year after the Park station bombing, but its role in the investigation was never explained. The witnesses, who by now met together with National Lawyers Guild attorneys at the Grand Jury Defense office, began questioning each other about it. It remained a mystery and it became a specter - so much so that during the grand jury probe witnesses were afraid to even drive near it for fear of being seen and associated with whatever it meant.

"Nobody has ever come here to question me about it." the young Chinese man who has lived at 1038 B Pine for the last four years told Rolling Stone. "The people who lived there a couple of years ago used to have a lot of meetings, but nobody ever asked about it." The apartment is now occupied by a young Chinese couple. Rolling Stone also learned, however, that the resident of the apartment at the time was someone named Steven Jaspers. Police and the FBI have that name and believe it to be an alias, but it was not mentioned in questioning before the grand jury.

All three of the first witnesses brought before the San Francisco Grand Jury had refused to answer questions despite the use immunity granted them. Finally, Dierker took them before Federal Judge Robert F. Peckham and demanded they be jailed for contempt.

Virtually the only thing the government cannot get away with in grand jury proceedings short of using a whip is questioning witnesses on the basis of information gained through wiretapping. From the questions, it appeared clear to the three witnesses and their attorneys that someone had been listening on someone's phones. Dierker flatly denied it. Judge Peckham found the defense arguments to be too vague - "all they say is that they heard strange noises on their phones," he said. The three were ordered placed in a "suitable place" until they were ready to testify, that suitable place being most likely the San Francisco County Jail. But Peckham granted a stay to allow attorneys to organize an appeal. The attorneys, in the meantime, petitioned US Supreme Court Justice William O. Douglas to grant bail to the witnesses while their appeal was being heard. Douglas referred it to the full court for a decision.

On November 16th, the full court returned its decision - no bail would be granted, the three were to be jailed, appeal or no appeal. It should be noticed that in this case, the process took more than three weeks. Other reluctant witnesses have been jailed in two days or less.

Under the law, witnesses cited for contempt may be held in jail for the life of the grand jury - or a maximum of 18 months. In normal cases, it would be unlikely that witnesses would serve the full 18 months, since the grand jury term would probably expire before then. But the law allows Internal Security Division Grand Juries to be extended up to 36 months. And even after their 18 month term has expired, witnesses may still not be free. In Tucson, five witnesses refused to answer Goodwin's questions about the purchase of some dynamite that was never used. They were cited for contempt and jailed. Two days after the grand jury's term expired, they were released. Federal marshals met them at the jail door with subpoenas to appear at a new grand jury.

At the heart of the matter, of course, is the question of why people who have nothing to hide should not testify. Aside from the problems of self-incrimination under the limited immunity granted current witnesses, or perjury for the unwary talker, there remains the aching feeling that by testifying one may be unwittingly participating in political repression that seems to sulk in the soul of the Internal Security Division. For all the powers granted it under the Organized Crime Control Act, the grand jury process has seldom been used against the syndicates or the moguls of the mafia. Instead, it has been directed at the Berrigans, the Ellsbergs, the Vietnam Veterans in Florida, the Irish Republican Army support groups in San Francisco, the Weatherpeople, the Mayday collective, the Black Panthers, the Movement in general. And it is clearly only the beginning, for what grand juries are really doing is compiling information for a step by the Justice Department that even now seems like only a paranoid nightmare.

The question the three witnesses in San Francisco consistently refused to answer speaks of how far reaching the process can be.

"... Have you ever discussed with any individual their role in the bombing of any building or their knowledge of the identity of any individual responsible for such bombing."

A casual conversation, perhaps, a random speculation, and someone else is is brought to appear, to provide yet one more fragment for the computer to digest and piece together in who knows what kind of tapestry of fear and intimidation.

"I do not know any members of the Weatherman organization," Dr. Craven told reporters after refusing to testify to the grand jury. "I don't have any knowledge of any explosives. The only thing I know about the Park police station bombing is that I was on duty as a doctor when the injured men were brought in.

"To my knowledge I have never done anything illegal."

He will never be told why the questions about 1038-A Pine street or about Weatherman were asked of him. Some of his associates in San Juan will probably always wonder, as will he.

Robert Sussman had waited for his turn to be called before the grand jury. When the court proceedings delayed it, he returned again to the commune at Redwing. But it was only a short stay, and within two weeks he was driving back again to San Francisco. The first snow was on the ground, and he was not sure he had gathered enough firewood for the winter.

"I began thinking as I drove that I could testify," he said, "but I don't know what fragments they could pull together. Me, you, anybody who lives a life style that allows people through their scene, I don't know. I won't testify, I guess, but I don't know still if the principle is worth 18 months in jail. I used to think I had found a sanctuary. It was an illusion. Now I'm interested in who I'm going to be when this is over."