House Majority Leader Tom DeLay is scheduled to appear in a Texas courtroom three weeks from today to face a charge of conspiracy. DeLay’s allies have ridiculed the charge, calling it the handiwork of a partisan prosecutor. DeLay claims that the prosecutor first told him he wasn’t a target of the investigation and then dodged responsibility for the indictment by blaming it on a “runaway grand jury” that didn’t follow his instructions. What’s a runaway grand jury?
One that ignores the prosecutor’s instructions. Grand juries are supposed to be independent, investigative bodies with the power to call their own witnesses, subpoena documents, and decide on the specifics of an indictment. In practice, they have very little opportunity to take initiative. The prosecutor decides which evidence will be presented, then tells the jury whom to indict on what charges. All the jury does is vote yes or no. In rare cases, a grand jury rejects the prosecutor’s direction, makes its own investigation, and draws its own conclusions. Lawyers call this a “runaway.”
These days, grand juries tend to serve as rubber stamps. In 1985, Judge Sol Wachtler famously said that grand juries are so compliant, a district attorney could get one to “indict a ham sandwich.” (Republican lawmakers likened DeLay to a ham sandwich here and here.) The modern criminal-court system makes it very difficult for a grand jury to exercise any independent authority. Subpoenas for witnesses or documents go through the prosecutor’s office, and testimony typically unfolds under her direction in the absence of a judge or defense attorneys. Critics of the system argue that even though grand juries are supposed to protect defendants from frivolous charges, they almost never do. Instead, prosecutors use grand juries to strengthen their cases—by obtaining evidence without having to parry defense objections, for example.
Runaway grand juries were far more common before the 20th century. Feisty jurors in New York took on government prosecutors when they chose to investigate Boss Tweed in 1872. Thirty years later, a grand jury in Minneapolis hired private detectives to help indict the mayor.
There have been a few runaway juries in recent years. In 1991, a federal prosecutor lost control of a jury investigating environmental crimes at the Rocky Flats Nuclear Weapons Plant. The government worked out a plea bargain with the company that owned the plant, but jurors wanted to indict the company along with five of its employees and three officials from the Department of Energy. A member of the grand jury who happened to be an attorney led the dissent.
Could Tom DeLay have been indicted by a runaway grand jury? Yes, because the jury didn’t have to run very far. It’s almost impossible for a jury to completely ignore a prosecutor’s wishes and conduct their own investigation. But in the Texas case, two of DeLay’s close associates were also being charged. Given the evidence, the jury might have decided on its own to extend the indictment to DeLay. It’s not clear if this happened—grand jury proceedings are typically kept secret—but these comments from the jury foreman suggest that the case proceeded in the usual manner.
Even if the jury did conjure the DeLay indictment on its own, the prosecutor could still try to make it go away. He could ask a judge to dismiss the charge for lack of evidence, for example.
Explainer thanks Lori Shaw of the University of Dayton.