Proposal to Provide Enhanced Citizen Participation in the Federal Justice System

and to Increase Accountability of Federal Law Enforcement and Justice Personnel

to the American People.

by

Michael S. Vollmer

Minneapolis, Minnesota

Aug. 31, 1997

Over the last couple weeks I've revisited and reread much of the material on the incidents at Ruby Ridge and Waco and other government abuses in recent years, especially the numerous ATF and DEA entrapments and other fiascoes. Aside from the outrageous conduct of Federal officials on a number of occasions, it occurs to me that there is an institutionalized lack of accountability as things are presently structured. This lack of accountability is manifest in a number of ways:

• All too often, law enforcement agencies investigate themselves through their Internal Affairs units. The fox consults with himself and concludes that yes, the chicken was good.
• When law enforcement agencies investigate one another, the so-called "Blue Wall of Silence" may well prevent an objective, unbiased review. Most foxes think alike: Chicken is good.
• Thirdly, in the case of some Federal agencies, including the Federal Bureau of Investigation, the personnel (the U.S. Attorneys) who would investigate law enforcement's misdeeds and those who would be investigated and possibly prosecuted all work for the Department of Justice. The foxes are of the same litter; they were all raised on chicken.

When, based on entrapment or the use of unreliable informants, citizens' homes are searched and the citizens themselves are improperly arrested, tried and sometimes murdered, there is an inherent lack of accountability on the part of those responsible for these injustices. There are, however a number of simple steps that could be taken to make them fully accountable.

• 1. Entrapment resulting in a Federal indictment or involving Federal officials should be a Federal felony, punishable by the greater of five years imprisonment or the length of imprisonment to which the entrapped individual might have been subjected.
• 2. Use of unreliable informants resulting in a Federal indictment or involving federal agents without investigating their background or past reliability would also be a Federal felony subject to the same penalties. Anonymous tips which result in searches, seizures and arrests during which no evidence of illegalities are found would be considered the same as unreliable informants. This would deter many abuses of the asset forfeiture laws; in all likelihood, such a provision would have prevented the slaughter of Donald Scott in Malibu, California, in a drug raid that was motivated primarily by the prospect of asset forfeiture.
• 3. At any Federal trial during which entrapment or the use of unreliable informants is alleged as a defense, the same jury which decides the issues of guilt or innocence shall be given instructions enabling it to return criminal indictments against those who appear to be responsible for the entrapment or use of unreliable witnesses. In the case of an unreliable witness, the same jury would also have to option of indicting the witness for providing false statements to Federal officials. For example, a jury that finds Defendant A not guilty because he was entrapped by Agent B would have the option of becoming a de facto grand jury and returning an indictment against Agent B for entrapment. This alone probably would have prevented the Ruby Ridge affair and saved the lives of three people, since it would have exposed a number of people who knew about and went along with Randy Weaver's entrapment, from the AFT informant up to and including the lead prosecutor, to possible indictment and prosecution. The judge would have the option of appointing a private attorney to undertake any prosecutions resulting from such indictments.

By themselves, except for the occasional appointment of a private attorney to act as prosecutor, the above reforms would work only if the current system of Federal prosecution backs it up. Unfortunately, as the Ruby Ridge affair shows, the Department of Justice and the Federal Bureau of Investigation are capable of scratching one another's backs for years on end without really accomplishing much. We need to go one step further:

• 4. Any attorney, licensed to practice before the Federal Courts or licensed to practice before the courts of the state in which occurred the (a) alleged entrapment, (b) alleged use of unreliable informants, or (c) any other crime alleged to have been committed by an agent of the U.S. government against any citizen, may file a motion with the U.S. District Court to convene a grand jury. Upon posting of a bond equivalent to the expected cost of the grand jury proceedings, the U.S. District Court shall convene a grand jury, to be known as a grand jury Pro Cive (On Behalf of the Citizen) to consider evidence and return indictments. The attorney and grand jury shall have full access to any and all evidence and witnesses that they request. Upon the conclusion of the proceedings, if indictments are returned or if the supervising judge concludes that the proceedings were not frivolous, the bond shall be refunded.
• 5. If indictments are returned, there may still be concerns about the ability of the U.S. Department of Justice to undertake the ensuing prosecution without being subjected to conflicts of interest. The attorney who instigated the grand jury may petition the U.S. District Court (a) to appoint him as a special prosecutor for the duration of the trials and appeals, (b) to appoint a different, specific, attorney to undertake the prosecution, or (c) to direct that the U.S. Department of Justice handle the prosecution; in appointing the prosecutor, the judge shall consider which of the proposed alternatives would result in the fairest and most vigorous prosecution. Whoever is appointed to handle the prosecution would be compensated at the same rate paid by the U.S. Department of Justice for the services of outside attorneys and would be provided with the same supporting resources as if he worked directly for the Department of Justice.

The proposals in (4) and (5) should not cause any undue concerns since all attorneys are "officers of the court" and would be working under the same rules as would the attorneys of the Department of Justice. These proposals would substantially enhance our system of checks and balances and increase the accountability of Federal employees to the citizens they are supposed to serve.