Federal Investigation of Schools

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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SCRANTON – For months, word of a federal grand jury meeting in Scranton to investigate corruption in Luzerne County has dominated the media.

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Since April, members of the press have watched as a school superintendent, a judge’s assistant, a former high-ranking court official and the father of a county commissioner entered a room to testify in the closed-door proceeding.

No one other than the members of the grand jury itself and the federal prosecutor presenting the case know why the witnesses were called or what they said.

The proceedings are closed to the public to protect the privacy rights of persons who are under investigation but who have not yet been charged with a crime. The closed proceeding also ensures that sensitive information regarding an ongoing investigation is not publicly revealed.

That secrecy leaves the public with little knowledge or understanding of exactly what a grand jury does. Information culled from the U.S. Department of Justice, attorneys who specialize in federal law and other legal resources offers some insight.

Grand juries are utilized by the federal government as well as a number of states and counties to investigate criminal matters. The Luzerne County probe is being handled by a federal grand jury.

A federal grand jury’s role is similar to that served by a district judge, or magistrate, in the state court system. The panel consists of 16 to 23 members of the public who are randomly selected from voter registration rolls within the district they live.

The panel meets at scheduled intervals – typically every one to two weeks – to hear evidence presented by an Assistant U.S. Attorney. There is no judge and no defense attorney present. Jurors are paid $40 per day, plus mileage, and serve for 18 months, but their term can be extended to up to 24 months.

The jurors listen to the prosecutor’s presentation, which may or may not include testimony from witnesses and/or federal agents. They then must decide if there is sufficient evidence – known as “probable cause” – that the person who is the target of the investigation committed the alleged offense.

In most instances, the government utilizes a regular grand jury – one that hears all types of cases. But prosecutors can also empanel a “special” grand jury to investigate a single case. Such panels were created in 1970 to investigate organized crime.

It’s not known whether the grand jury currently hearing Luzerne County cases is a special or regular grand jury. Heidi Havens, spokeswoman for the U.S. Attorney’s Office, said the office does not release that type of information.

With either a special or regular grand jury, at least 12 of the members of the panel must agree there is sufficient evidence to support the charges. If so, the panel will hand up an indictment that allows a prosecutor to then obtain a warrant for the defendant’s arrest. If there is not sufficient evidence, the panel will return what is known as a “no bill.”

A defendant could also waive his or her right to have the case presented to the grand jury and instead be charged through a document known as an “information” that details the charges, similar to an affidavit of probable cause filed in a state court case. This option is employed as part of a negotiated plea deal the defendant has reached with federal prosecutors.

While the grand jury investigating Luzerne County has been active, the panel has done little in terms of issuing indictments.

Of the 12 people charged so far, only one – Luzerne County Jury Commissioner Gerald Bonner – has been charged by way of indictment. Of the remaining 11 defendants, 10 have been charged via an information and plea agreement.

The lone holdout has been Wilkes-Barre Area school director Brian Dunn, who was charged via a complaint – a third option prosecutors can utilize to bring a charge.

When a complaint is filed, prosecutors must then present the case to a grand jury or hold a hearing known as a “preliminary examination.” That hearing is held before a federal magistrate judge who decides if there is sufficient evidence for the case to proceed. Dunn’s preliminary examination is scheduled for Sept. 17.

Defendants generally fare much better if they seek out a plea deal before their case goes before a grand jury, said Douglas McNabb, an attorney with offices in Washington D.C. and Texas who specializes in federal law.

“The key is to get to the government before the government gets to your client,” McNabb said. “One has a lot more wiggle room in terms of plea negotiations if it’s done before an indictment as opposed to after indictment. You can limit the number of charges and plead to a count that isn’t quite as draconian as the one you might be indicted for.”

McNabb said he does whatever he can to prevent his clients’ cases from going before a grand jury. That’s because the grand jury process is decidedly one-sided.

“The statutes are so broadly written they could get just about anyone,” McNabb said. “It’s been said they could indict a peanut-butter-and-jelly sandwich if they wanted to.”

Under grand jury rules the subject of the investigation does not have the right to appear or present evidence in his or her favor. Federal prosecutors also are not required to present evidence they may have that favors the defendant, although the Department of Justice’s policy states prosecutors should do so.

“At the conclusion, the prosecutor is going to say ‘Based on what I told you, do you think John Doe probably committed a crime?’ They’re going to say ‘yes’ because they only got one side,” McNabb said.

In most instances, subjects don’t even know they were under investigation until federal authorities arrive at their home to arrest them, McNabb said.

Contrary to common belief, the government is not obligated to send the subject of an investigation a “target letter” advising them that they are being investigated, McNabb said.

The government can opt to do so, McNabb said. Prosecutors typically do so only in cases involving multiple defendants in which they want to turn one defendant against the others, he said.

The subject of an investigation can volunteer to appear before the grand jury to give his side of the story, but federal prosecutors are not under any legal obligation to allow such testimony.

That’s typically not an issue, McNabb said, because it’s rare for a target to voluntarily appear before the grand jury. That’s because the targets put themselves at substantial risk.

Grand jury rules do not allow any witness, including the target, who testifies to have an attorney present with them during their testimony. An attorney can accompany the person, but they must sit in a separate room during their client’s testimony.

A witness can halt questioning to consult with their attorney at any point during the proceeding. That requires them to physically remove themselves and go into the room where their attorney is located.

Witnesses, who testify under oath, also are not read their Miranda rights that warn them that anything they say can be used to prosecute them criminally. They do have the right to refuse to answer a question by invoking their Fifth Amendment right against self incrimination.

“One may walk into a grand jury room thinking they are a witness, and when they walk out they are a target,” McNabb said.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.