Grand Jury Suspensions A Looming Problem For Prosecutors

By Jody Godoy
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Law360 (May 5, 2020, 8:03 PM EDT) -- As court closures stretch on during the coronavirus pandemic, the suspension of federal grand juries is causing headaches for prosecutors by jeopardizing older cases and slowing down complex ones, requiring judges to consider how to bring the panels back.

While court administrators grapple with how to safely restart jury proceedings, each of the 94 federal courts has issued its own guidance. Some courts are allowing grand juries to convene, while others have shut down grand juries entirely until the summer.

Even without grand juries, prosecutors are still able to charge suspects by complaint and seek their arrest — and they have done so in an increasing number of cases involving pandemic-related fraud schemes and price-gouging. Ordinarily, prosecutors would have 30 days from an arrest to seek a grand jury indictment, but judges in many districts have extended that deadline. The law also allows for an extra 30 days when no grand jury has sat in the past 30 days.

But the suspension of grand juries is problematic for complex cases and those targeting conduct where the statute of limitations is close to expiring. Under the law, defendants must be indicted by a grand jury before the statutory limit runs out. For most crimes, federal statutes typically require charges to be brought within five years.

Reed Brodsky, a partner at Gibson Dunn & Crutcher LLP, said that unless Congress provides the authority to extend statutes of limitations, old cases may expire while grand juries aren't meeting.

"It's a real problem for the government," Brodsky said.

Perhaps anticipating the issue, two federal courts in Texas have ordered statutes of limitations suspended. Attorneys are skeptical of that approach.

The Western District of Texas, which covers Austin and San Antonio, and the Southern District, which covers cities including Houston, are operating under orders that say while grand juries are suspended, "related deadlines are suspended and tolled for all purposes, including the statute of limitations."

Under the law, judges are allowed to suspend the statute of limitations in narrow circumstances, including when prosecutors have requested evidence from overseas or in a time of war.

Court staff for Chief Judge Orlando L. Garcia of the Western District declined to comment on the order. Chief Judge Lee Rosenthal of the Southern District declined to comment via her case manager, but said the possibility of bringing back grand juries earlier than July 6 is being explored.

Houston-based defense attorney David Gerger of Gerger Khalil Hennessy & McFarlane LLP said that if prosecutors end up obtaining indictments outside statutory deadlines, challenges from defendants will surely follow.

"I think the historical understanding is that statutes have to be changed by statutes," Gerger said. "This may be setting up litigation if the government relies on these orders."

Other courts have also suspended their grand juries. Of the 25 district courts that handled the highest number of fraud cases over the last year, 15 have standing orders suspending the convening of grand juries until the end of May or beyond.

While a handful of those courts explicitly allowed U.S. attorneys to ask for exceptions in the case of an emergency or with the chief judge's permission, the others do not say whether they will entertain prosecutors' requests to bring in a grand jury. However, inquiries from Law360 show that prosecutors and courts are talking about the problem behind the scenes.

In Maryland, a spokeswoman for U.S. Attorney Robert K. Hur said the office is still aggressively prosecuting cases by information and complaint while keeping in touch with the court about potential issues caused by grand juries being out until June 6.

"We continue to work productively with our court, the members of which are aware of the difficulties presented by suspension of the grand jury," spokeswoman Marcia Murphy said.

The Southern District of Florida has one of the longest suspensions currently in place, with grand juries out until July 6. In response to an inquiry from Law360, Chief Judge Kevin Moore said he is also in communication with the district's U.S. attorney's office and that prosecutors have not yet asked for grand juries to reconvene sooner.

"When they do, we will be prepared to accommodate their requests, albeit under circumstances that will take into account the health and safety concerns of the jurors and others present during those proceedings," Judge Moore said.

In Connecticut, the court already has a plan to allow grand jurors to come back after May 18.

Chief Judge Stefan Underhill wrote in a recent order that the grand jury is an "essential service that can safely be performed in a courtroom without anyone breaching social distancing," and that the court is considering measures to "promote safety and encourage grand juror participation."

Judge Underhill's law clerk Maytte Caldero told Law360 that staff will sanitize the courtroom before and after the grand jury meets and mark socially distanced seating arrangements. Jurors will be asked to wear masks and gloves, keep their distance from one another, bring their own lunches and stagger their arrival at court to avoid a front door pileup.

"In short, every effort will be made to ensure their safety and the safety of court personnel," Caldero said.

However, some courts have found that getting people to come in and sit on a jury together in the age of COVID-19 presents a challenge.

In a trial in California that was paused because of the pandemic, nine out of 14 jurors polled said they had concerns about reconvening before the end of local shelter-in-place orders. And in the Eastern District of New York, Chief Judge Roslynn R. Mauskopf noted in a recent order extending the court's shutdown that none of the district's grand juries would be able to reach a quorum before May 15.

The Southern District of New York has not suspended grand juries, and even provided for one to convene from two different courthouses by videoconference in late March. But neither the district executive who oversees court operations nor the U.S. attorney's office would comment on whether any grand juries have been able to form a quorum since then.

In addition to affecting older cases, the lack of grand juries is likely to have an impact on complex fraud cases.

Sarah E. Walters, a partner at McDermott Will & Emery LLP and former head of the economic crimes unit at the U.S. Attorney's Office in Boston, said that there are various reasons why prosecutors put complex cases before a grand jury rather than charging them first by complaint.

Walters noted that indictments are more formal and less subject to attack by a defendant. Indicting someone from the outset also typically allows prosecutors to hand over their evidence to a defendant later in the process, instead of in a probable cause hearing or a complaint.

While prosecutors retain some investigative tools, such as subpoenaing businesses for documents, Walters said that using a grand jury to hear testimony from witnesses gives prosecutors some advantages.

"For the complex cases that may take years to investigate and then may take years longer to go to trial, oftentimes you want to lock people into their testimony," Walters said.

--Editing by Jill Coffey and Kelly Duncan.

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