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Speaker 1: You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio.

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Speaker 1: Public criticism of Chicago federal prosecutors reached a tipping point

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Speaker 1: when the prosecution of four anti ice protesters imploded after

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Speaker 1: revelations of serious misconduct at the grand jury and an

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Speaker 1: apparent effort to cover it up. Judge April Perry said

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Speaker 1: her trust in government attorneys had been broken and indicated

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Speaker 1: that sanctions against the prosecutor could be appropriate, and now

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Speaker 1: that the grand jury transcripts have been revealed, the full

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Speaker 1: extent of the federal prosecutor's misconduct has shocked legal experts

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Speaker 1: and led to questions about the motivation for bringing the charges.

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Speaker 1: My guest is Rick Simmons, a professor at Ohio State's

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Speaker 1: Meritz College of Law. Rick, we heard broadly from the

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Speaker 1: judge about the misconduct involved in this grand jury proceeding.

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Speaker 1: What was your reaction though, when you read the actual

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Speaker 1: transcripts of the proceedings?

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Speaker 2: To be honest, when I actually read the transcript I

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Speaker 2: was pretty shocked. I read a lot of the news

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Speaker 2: articles and what the judges said about the grand jury

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Speaker 2: and what the conduct was in the grand jury, But

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Speaker 2: I did not realize the extent of the misconduct by

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Speaker 2: this prosecutor, So people who have not been in a

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Speaker 2: grand jury might not understand what the rules there are.

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Speaker 2: The prosecutor is supposed to essentially to set out the

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Speaker 2: facts through witnesses and then charge on the law, which

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Speaker 2: is essentially reading the law to the grand jury. And

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Speaker 2: that's pretty much. Yet there's not supposed to be an

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Speaker 2: opening argument, a closing argument, any kind of opinion about

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Speaker 2: the evidence should say. You can have standard instructions about

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Speaker 2: you know that they're allowed to make logical inferences, but

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Speaker 2: she's not to tell them what those inferences should be.

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Speaker 2: And this prosecutor broke pretty much all those rules. She

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Speaker 2: had an opening argument or closing argument. She essentially told

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Speaker 2: the grand juris at least suggested very strongly how the

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Speaker 2: grand jeur should interpret the evidence here, and none of

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Speaker 2: that is appropriate in a grand jury setting. So that

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Speaker 2: the first thing that struck me as the extent of

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Speaker 2: how much this prosecutor essentially argue the case of the

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Speaker 2: grand jury, which is not supposed to happen in that context.

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Speaker 1: And the prosecutor, Sherry Mecklenberg, told the jurors, I know

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Speaker 1: you and I trust you, and you know me, and

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Speaker 1: you trust me, and I would never ask you to

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Speaker 1: chart somebody if I didn't think there was probable cause.

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Speaker 1: What's wrong with that.

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Speaker 2: That's the second level of misconduct. So even in a

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Speaker 2: trial jury, you're not supposed to put your own personal

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Speaker 2: opinion into the jury's sort of minds about this. So

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Speaker 2: you're not supposed to personally vouch for a witness or

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Speaker 2: vouch for a case. The case is supposed to be

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Speaker 2: about what the evidence shows and what the jury can

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Speaker 2: conclude from evidence, not ballot they trust one of the

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Speaker 2: attorneys or not. So you're never supposed to, in a context,

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Speaker 2: tell the grand jury about your own personal opinion and

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Speaker 2: how they can trust you about certain things being true.

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Speaker 2: Any judge would strike that from the record of it

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Speaker 2: happened in a grand jury or a trial jury. And

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Speaker 2: then the other level, of course of what happened here

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Speaker 2: was when she excused or kicked out one of the

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Speaker 2: grand jurors because he was not willing to go along

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Speaker 2: with what she wanted. A prostuor does not have the

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Speaker 2: power to do that. In a grand jury. The grand

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Speaker 2: jury is a creature of the court. The judge is

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Speaker 2: the one that impaled the grand jury. Only a judge

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Speaker 2: crid kicks one off for a misconduct, So that doctor

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Speaker 2: the prosture did that is also improper in the illegal

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Speaker 2: So there.

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Speaker 1: Was a first appearance before the grand jury and they

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Speaker 1: declined to return an indictment. Then at the second appearance

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Speaker 1: before the grand jury, that grand jury you were talking

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Speaker 1: about said, I heard this case last week and I

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Speaker 1: thought it was a crock up blank then and I

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Speaker 1: still think it is. And she just dismisses him from

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Speaker 1: the grand jury. I mean, have you ever heard of

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Speaker 1: a prosecutor saying to a jury, go away if you're

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Speaker 1: not going to side with me.

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Speaker 2: No, I've never heard that before. Now, the prosecutor tried

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Speaker 2: to make that sound appropriate by saying, well, do you

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Speaker 2: have an open mind? You don't have an open mind,

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Speaker 2: you shouldn't be in the jury. And that's true for

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Speaker 2: trial juries. If when you're bardeering a trial jury, if

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Speaker 2: someone says they can't have an open mind about the case,

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Speaker 2: a judge will excuse them from the jury, and so

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Speaker 2: the bar deer process will take care of that. I've

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Speaker 2: never heard of that happening before in a grand jury.

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Speaker 2: And again, the prosecutors that have that power anyway. So

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Speaker 2: just to be clear, it is legal. It's unusual, but

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Speaker 2: legal for the prosecutor and the federal system to represent

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Speaker 2: the case after it's been rejected. You can bring in

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Speaker 2: new evidence, and you're allowed to do that if you want,

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Speaker 2: so there is nothing improper about that. But it is

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Speaker 2: improper to basically the second time around, if grand jurys

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Speaker 2: say I STI don't think this case is indictable, to say, okay,

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Speaker 2: we can leave the room then and you're done. That's

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Speaker 2: simply unprecedent as far as I know.

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Speaker 1: So then when she presents it a third time, the

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Speaker 1: time she actually gets the indictment, that's after the US

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Speaker 1: attorney has addressed all three grand juries.

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Speaker 2: Right, it's not unusual for the US attorney. That's obviously

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Speaker 2: that the head attorneys of the whole district to come

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Speaker 2: in and talk grand juries. When they're in paneled, and

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Speaker 2: they talked about their role. I suppose it's not improper

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Speaker 2: necessarily for them to sort of remind them of the

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Speaker 2: role once in a while. When the US attorney does that,

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Speaker 2: specifically to a grand jury that has just rejected this

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Speaker 2: case is about to vote in the case again, it

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Speaker 2: sends a pretty strong message that the US Attorney doesn't

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Speaker 2: think they're doing the right thing. So again, what the

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Speaker 2: US Attorney said, the actual words aren't particularly you know, improper,

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Speaker 2: and that's something the US tourney might say at the

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Speaker 2: beginning of a grand jury term. But given the context

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Speaker 2: of what this grand jury had just done and what

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Speaker 2: they're about to be us to do, there was a

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Speaker 2: pretty clear message. I thought. When the US Attorney comes

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Speaker 2: back to that grand jury in the middle of their

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Speaker 2: term and gives them this instruction, the US Attorney is

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Speaker 2: telling them what they should do, which is to indict

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Speaker 2: this case. So in that context that was also something

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Speaker 2: that was highly unusual, and.

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Speaker 1: US Attorney Andrew Boutros ended up revealing the transcript of

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Speaker 1: what he said to the grand juries that day. Part

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Speaker 1: of what he said, which I question, is if there's

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Speaker 1: anyone here who is struggling with a certain type of case,

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Speaker 1: such as the immigration cases or other cases where they

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Speaker 1: do not believe that they can set aside their personal emotions,

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Speaker 1: that they cannot listen and deliberate honestly and objectively, I

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Speaker 1: would like you to raise your hand and identify yourself,

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Speaker 1: because we have a different procedure for that. Does that

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Speaker 1: go too far?

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Speaker 2: Again, in this context, it does. So when you first

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Speaker 2: in panel a grand jury, it's appropriate to tell them

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Speaker 2: they should keep an open minds appropriate to make sure

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Speaker 2: they know that if they have a certain kind of case,

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Speaker 2: it's problematic to let them know. And there's the procedure

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Speaker 2: can go through which would involve a court or a judge,

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Speaker 2: not just the executive brand US attorney prosctorial body. There

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Speaker 2: is a procedure at that stage, at the very beginning,

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Speaker 2: when you're in the middle of hearing cases. That is

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Speaker 2: not something that you would do because it's setting this

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Speaker 2: signal about what you want me to do in the

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Speaker 2: particular case. Also, the grand jury, people should realize grand

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Speaker 2: jury plays a different role than a trial jury does.

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Speaker 2: A trial jury is meant to simply hear the evidence

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Speaker 2: and then vote to convict or not convicts based on

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Speaker 2: the evidence and the law that's it. A grand jury

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Speaker 2: is supposed to be more of a screener and not

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Speaker 2: just a legal screener to show there's probable cause to indict,

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Speaker 2: but also is supposed to act as a conscience of

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Speaker 2: community in a sense, they are not required to indict

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Speaker 2: if there's probable cause, they may indie there's proble cause,

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Speaker 2: they almost always do. But if for equitable reasons or

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Speaker 2: any other reasons they believe that they shouldn't indict, they

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Speaker 2: are perfectly allowed under the law to not indict a case.

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Speaker 2: And so if they think that immigration cases have gone

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Speaker 2: too far and that they should indict cases that involved immigration,

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Speaker 2: or at least cases that are orderligned involving immigration, is

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Speaker 2: completely their right not to do so. They don't have

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Speaker 2: to indict when there's probable causes they think that for

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Speaker 2: exubal reasons, this is not cases should be indicted. So

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Speaker 2: I think that the US today they're misunderstood or essentially

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Speaker 2: was not thinking about the actual rod the grand jury.

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Speaker 2: The grand jury is meant to sort of be a

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Speaker 2: check on the protorial power, not just legally, but also

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Speaker 2: again in a more equable sense, to make sure that

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Speaker 2: the powers not being abused or use in the way

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Speaker 2: that the community think is inappropriate.

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Speaker 1: Another thing that the line prosecutor did which I've never

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Speaker 1: heard of this either, and I don't know how you

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Speaker 1: think you could get away with it. She admitted that

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Speaker 1: she had substantive conversations with grand jurors outside the grand

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Speaker 1: jury room.

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Speaker 2: Yeah, there's also surprises. She did admit to that, you know,

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Speaker 2: in the grand jury transcript, and she ad minute to

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Speaker 2: to judge later. I think everyone knows you're not supposed

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Speaker 2: to have expart take communications outside of the courtroom or

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Speaker 2: the grand jury room while the case is proceeding. It

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Speaker 2: can be awkward, I'll admit. I mean, I've been a

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Speaker 2: prosecutor and you see a grand juror in the elevator

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Speaker 2: or a trial during the elevator while the case is proceeding,

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Speaker 2: it can be awkward. You know, they might want to

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Speaker 2: talk to you. You have to sort of shake your

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Speaker 2: head and just say no and move away. They should

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Speaker 2: know that they can't talk to them, and maybe if

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Speaker 2: that does happen, then on the record next time you

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Speaker 2: see them, all say so, so you know, I can't talk

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Speaker 2: to you outside of this courtroom. That's not permitted. There

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Speaker 2: are rules that say you're simply never allowed to do that.

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Speaker 2: So it's something that every trial attorney knows. And so

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Speaker 2: the idea that that Foster dead to that is also

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Speaker 2: very very surprising. I'm not sure how much that effected

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Speaker 2: the case. I don't know the content of the conversation.

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Speaker 2: But that's the entire point. We don't know the content

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Speaker 2: of the conversation. It wasn't on the record, and so

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Speaker 2: it was also inappropriate.

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Speaker 1: You know, there's one thing after another. When the judge

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Speaker 1: asked for the transcripts, initially asked for the transcripts, the

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Speaker 1: prosecutors redacted some of their behavior from the transcripts.

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Speaker 2: Yeah, I mean so, just again, so people understand, grandeury

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Speaker 2: proceedings are meant to be confidential, so they're generally not

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Speaker 2: released to the public, and unless its extraordinary case, but

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Speaker 2: the judge who umpaneled the grand jury is supposed to

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Speaker 2: be able to review that grand jury transcript. Now, there

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Speaker 2: are very few reasons when a judge, you know, would

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Speaker 2: would find problems with that, right, judge, almost every in

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Speaker 2: a second guest the problem com determination of a grand jury.

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Speaker 2: But part of the judge's role is to review that transcript.

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Speaker 2: And there's no reason I can think of why you

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Speaker 2: would redact something from the trial judge, if it's being

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Speaker 2: leased to the public. You know, there's names of confidential

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Speaker 2: performance in there, or names of an accused who wasn't indicted,

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Speaker 2: and we have to keep them secret, so they're not

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Speaker 2: reputations not harmed. I could see that, but this was

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Speaker 2: just I think the judge of that stage was asking

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Speaker 2: to review it, you know, in chambers, just by the judge.

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Speaker 2: So I don't see why that should be redacted. I

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Speaker 2: think that reaction was I know, another sign the judge

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Speaker 2: saw that something is not exactly right here about what's

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Speaker 2: going on? Why are things being hidden from me?

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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 1: this conversation with Professor Rick Simmons of Ohio State's Maritz

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Speaker 1: College of Law. How the prosecutorial misconduct here moved prosecutors

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Speaker 1: to dismiss charges against two defendants in a fraud case

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Speaker 1: where there were similar allegations of misconduct by the prosecutor.

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Speaker 1: It's also led to defense attorneys to ask for transparency

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Speaker 1: in other matters handled by her. A Chicago federal prosecutor

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Speaker 1: went into a grand jury room last fall and told

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Speaker 1: grand jurors she was sure they had enough to indict

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Speaker 1: anti ice protesters accused of blocking a federal agent's vehicle.

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Speaker 1: Assistant US attorney Sherry Mecklenburg told the grand jury in October,

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Speaker 1: I know you, and I trust you, and you know

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Speaker 1: me and you trust me, and I would never ask

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Speaker 1: you to charge somebody if I didn't think there was

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Speaker 1: probable cause. Federal Judge April Perry later described those statements

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Speaker 1: as vouching improperly assuring grand jurors about the strength of

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Speaker 1: the case. That, along with other irregularities including Mecklenburg's abrupt

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Speaker 1: dismissal of a skeptical grand juror and communications with members

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Speaker 1: of the grand jury outside the jury room, are detailed

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Speaker 1: in the grand jury transcripts, which shed light on the

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Speaker 1: precise seedings that are normally kept secret. I've been talking

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Speaker 1: to Rick Simmons, a professor at the Meritz College of

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Speaker 1: Law at Ohio State University. So the Chicago US Attorney's

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Speaker 1: Office has moved to dismisscharges against two defendants in a

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Speaker 1: fraud case after a judge call for an evidentiary hearing

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Speaker 1: to examine similar allegations of misconduct by this prosecutor Mecklenburg,

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Speaker 1: and a third judge said she'd examine grand jury transcripts

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Speaker 1: in a case Mecklenburg presented to a grand jury in

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Speaker 1: twenty nineteen. What about defendants that have been convicted already?

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Speaker 1: Could they be set free because of prosecutorial misconduct. I mean,

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Speaker 1: what are the remedies here.

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Speaker 2: That's an interesting question that the remedy is tougher because

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Speaker 2: once you have a conviction, so again that the grand

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Speaker 2: jury is meant to dci that there's probable cause to

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Speaker 2: move forward, why do you have a conviction? That theory

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Speaker 2: is you've proven the case be honorable doubt, not just

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Speaker 2: by probo cause. So it's hard to find to remedy there.

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Speaker 2: So as a counterexample, if for example, evidence was brought

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Speaker 2: in that shouldn't have been brought in, or there's a

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Speaker 2: problem the forensic lab and there was bad evidence coming

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Speaker 2: out of the forensic lab, and the trial jury heard

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Speaker 2: all that and convicted, then you could certainly overturn the

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Speaker 2: convictions because that evidence was tainted. Then the case where

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Speaker 2: you you know, the trial jury didn't rely in the

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Speaker 2: grand jury indictment for evidence anyway, So the conviction does

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Speaker 2: in theory cure that mistake as far as you know,

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Speaker 2: sanctions being brought against this particular prosecutor, that would be

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Speaker 2: a reason to look into this as well see if

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Speaker 2: that that could be a reason. But also moving forward,

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Speaker 2: I think it shows that the judges now in this

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Speaker 2: district are going to take hard looks at all the

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Speaker 2: indictments and all the grand jury proceedings that are happening

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Speaker 2: to ensure there's no further misconduct that might happen. So

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Speaker 2: it really does break that trust that federal judges generally

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Speaker 2: have of US Attorney offices, that they assume there'd be

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Speaker 2: not just following the law, but also following the norms

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Speaker 2: and doing things they're appropriate. So I think not only

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Speaker 2: going backwards, are there going to be some reviews, but

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Speaker 2: also there's going to be much stronger review of cases

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Speaker 2: moving forward because because they've lost that trust.

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Speaker 1: Yeah. So, more than one hundred former prosecutors in Illinois

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Speaker 1: signed a statement. They raised concerns about what's happening in

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Speaker 1: the office and the leadership by this US attorney. There

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Speaker 1: are also some senators that are calling for him to resign.

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Speaker 1: But he said that there's an increasing lack of trust

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Speaker 1: from judges, and the judge in this case, Judge Perry,

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Speaker 1: said she'd lost her faith.

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Speaker 2: Yeah, I'm not surprised by that. I think the Department

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Speaker 2: Justice in general, I'm sure this office specifically has been

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Speaker 2: able to do things more efficiently, get better at convictions,

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Speaker 2: get indictments more easily because there was that trust, because

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Speaker 2: the again Department Justice had up until recently a very strong,

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Speaker 2: probably strongest reputation for integrity and for following them rules.

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Speaker 2: And I think the long term follow of this, I

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Speaker 2: guess ironically, is that it's going to be much harder

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Speaker 2: for them to do their job getting a diamonds, getting

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Speaker 2: convictions because this judge, and I think other judges in

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Speaker 2: this district and frankly I think around the country are

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Speaker 2: losing that trust and so that are they're going to

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Speaker 2: scrutinize the US journey's conduct much more carefully because they

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Speaker 2: don't have that ability to believe that everything that's been

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Speaker 2: happening is appropriate.

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Speaker 1: I mean, federal prosecutors in the Trump administration seem to

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Speaker 1: be disproving the long held legal theory that a prosecutor

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Speaker 1: can get a grand jury to indict a ham sandwich.

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Speaker 2: That's right.

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Speaker 1: I mean, yeah, they are failing to indict juries in

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Speaker 1: not only Chicago, but DC and LA are failing to indict.

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Speaker 1: And I'm wondering, you know what you think the cause is.

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Speaker 1: Is it a lack of trust? Is it the kind

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Speaker 1: of cases that are being brought like in DC, they

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Speaker 1: wouldn't indict in the case where six lawmakers made that

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Speaker 1: video statement about soldiers and having to obeyans that are illegal.

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Speaker 2: Well, I think there's a few things going. I think

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Speaker 2: that the lack of trust is the last thing that happened.

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Speaker 2: I think that lack of trust is now happening because

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Speaker 2: of these cases are being rejected by grand juries. I

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Speaker 2: think two primary things are happening. One is case still

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Speaker 2: being brought which really aren't strong enough to indict, where

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Speaker 2: there's so much eagerness to indict a case where the

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Speaker 2: facts aren't really there to indict. That you're seeing grand

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Speaker 2: juries Loogain saying, actually, I don't think that this is

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Speaker 2: appropriate based on the law, and also relate to that

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Speaker 2: cases being brought, at least in many people's opinions, for

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Speaker 2: political reasons against political opponents, and that's exactly what grand

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Speaker 2: jury is supposed to do. They're supposed to identify those

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Speaker 2: cases and question them more severely and then not indict

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Speaker 2: if it's mostly a political polically motivated prosecution, because politics

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Speaker 2: should have no part of who gets indicted and who

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Speaker 2: does it. So once you start bringing cases that are

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Speaker 2: very very weak and bringing cases for what are pret

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Speaker 2: evidently political reasons. Then grand juries are going to refuse

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Speaker 2: to indict. That's going to then lead to a loss

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Speaker 2: of trust and more and more judges especially, you're going

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Speaker 2: to be questioning what the Parmer Justice is doing. And

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Speaker 2: as oppose, the more we see these kinds of cases

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Speaker 2: in the media, and people in grand juries will also say, okay, well,

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Speaker 2: I guess we have to think twice about all the

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Speaker 2: cases being brought to us, and so you might see

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Speaker 2: again more instances of this happening where they don't indict.

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Speaker 2: So again, I suppose it's ironic, but by being so aggressive,

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Speaker 2: by trying to get so many more indictments, actually hurt

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Speaker 2: them down the road trying to get indictments. I also

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Speaker 2: want to just say one thing is that in the

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Speaker 2: Department of Justice, overall the Suriy's offices, they're indicting probably

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Speaker 2: hundreds or thousands of cases every day, and many of

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Speaker 2: them are hardworking line prosecutors that are just trying to indict,

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Speaker 2: you know, people who deserve to be indicted. We're seeing

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Speaker 2: the high profile cases where there are certain members of

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Speaker 2: the Parmer Justice that are overreaching. I don't want to

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Speaker 2: paint the entire Department of Justice all the federal prosecutors

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Speaker 2: as being overly aggressive and political, but only takes a

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Speaker 2: few and then the media understandably and correctly starts to

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Speaker 2: focus on those to have everyone lose face in the

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Speaker 2: entire system.

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Speaker 1: I take it it's unusual because prosecutors will usually get

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Speaker 1: a grand jury to indict. It's unusual to bring the

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Speaker 1: same case before a grand jury two and three times.

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Speaker 2: Yeah, it's very unusual. Again, it is legal to bring

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Speaker 2: the case again to a grand jury. You're allowed to

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Speaker 2: represent it as many times as you want. But it's

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Speaker 2: unusual only because, first of all, as you say, the

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Speaker 2: case should be strong enough the first time. So it's

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Speaker 2: very unusual not to get indictment the first time. And

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Speaker 2: if you don't get an indictment, what usually happens you

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Speaker 2: go back to your supervisor, and the supervisor says, what

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Speaker 2: went wrong? Why didn't you get any indictment, And for

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Speaker 2: you to say no, no, I'm gonna try it again

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Speaker 2: and use all those resources you have to sort of

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Speaker 2: convince your supervisor what went wrong and how you can

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Speaker 2: fix it. I think most prosecutors on their own and say, okay,

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Speaker 2: this case is too week And if not, then the

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Speaker 2: supervisor would tell them it's two weak, don't try this again.

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Speaker 2: You have a lot stronger evidence, and so you would

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Speaker 2: just drop the case at that point. So the system

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Speaker 2: institution is supposed to work that that is a rare

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Speaker 2: thing to happen. If you're the case of so week,

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Speaker 2: you couldn't get it the first time, You're Pi'm not

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Speaker 2: going to the second time, and so why we're going

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Speaker 2: to waste our time with it?

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Speaker 1: Grand jury secrecy, I don't know how. Initially, you know,

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Speaker 1: the defendants found out that there were problems with the

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Speaker 1: grand jury. But grand jury secrecy, you know, is said

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Speaker 1: to be all important. But does this show that perhaps

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Speaker 1: grand jury shouldn't be so secret or am I going

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Speaker 1: too far?

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Speaker 2: Well, I don't think you're going too far. So many people,

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Speaker 2: certainly in the academy, you know, writing like I'm writing,

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Speaker 2: have said that grand jury secrecy is a sort of vestigial,

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Speaker 2: outdated rule that we have that doesn't really apply anymore.

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Speaker 2: So even before this new wave of cases where we

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Speaker 2: now have reason to mistrust what the prosecutor might be

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Speaker 2: doing the grand jury, even before that pill question the

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Speaker 2: need for grand jury secrecy. So the main reasons for it.

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Speaker 2: We're one to avoid, you know, witness tampering or witness intimidation.

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Speaker 2: We already have laws in the books to prevent that.

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Speaker 2: That's never been something we think is widespread. We also

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Speaker 2: they say they want to prevent the especially damaging the

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Speaker 2: reputation of people who might be vetigated by grand jury

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Speaker 2: or where someone might be they might try and charge them,

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Speaker 2: but they don't, and so they want to save the

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Speaker 2: reputation is not indicted. But since so many people are indicted,

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Speaker 2: I mean against the ninety eight percent rate, generally, it

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Speaker 2: doesn't really apply in that case that we have to

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Speaker 2: protect those names. So there's not really strong reasons that

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Speaker 2: we still have today for having to keep the grand

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Speaker 2: jury secret. And given this kind of misconduct that we're seeing,

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Speaker 2: I don't think that it's something that we should keep

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Speaker 2: going there. There are state grand juries that don't have

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Speaker 2: those kinds of rules, someone that have sunshine laws that

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Speaker 2: allow you to see the grand jury transcripts at least

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Speaker 2: once the case is over, and there's never been any

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Speaker 2: kind of problem that I can see when that happened.

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Speaker 2: In fact, ended up increasing the quality of the grand

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Speaker 2: jury proceedings and making the legitimacy to the body stronger,

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Speaker 2: so people can see what's happening there, understand the grand

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Speaker 2: jury better. So I think it's probably time to end

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Speaker 2: the grandjury seekers even before this, and it's just another

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Speaker 2: good reason to do so.

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Speaker 1: Well, we haven't heard the last of the ramifications from

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Speaker 1: this case, that's certain. Thanks so much for joining me.

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Speaker 2: Rick.

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Speaker 1: That's Professor Rick Simmons of Ohio State's Maritz College of Law.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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