to be prosecuting the case, that denigrates the entire system and the purpose of having a reviewer. The purpose of a reviewer is to decide whether or not that case should be sent back to the individual jurisdiction for a criminal case to be filed, to make that decision first and not to assist in the filing of that case. Senator ARMSTRONG. Mr. Grossman made the point that his client Declan O'Donnell was summoned before the grand jury even after he had written a letter, as O'Donnell's counsel, saying, "Nothing doing; we are not going to appear before the grand jury," and that he, Mr. Grossman, was never notified of that until it happened. Should I be concerned about that? And if so, is that something that has happened frequently in your experience, or is that an unusual event? Mr. RUSSELL. Well, clearly that is an impropriety. I think once the U.S. attorney is put on notice that you represent an individual, he has an obligation to keep you advised as the attorney and representative of that individual. I personally have not had that situation happen. I have heard situations where that has happened. More often, I have heard several situations where the agent goes out and tries to talk to your client in spite of the fact that he knows that you represent the client, without a subpoena. And that has happened several times that I am aware of. Senator ARMSTRONG. I think you have already indicated that abuses of this kind are not uncommon. I am not sure if I asked you directly whether or not you agreed that it was a pattern, or whether or not, as Mr. Grossman and Mr. Kilpatrick have said, there are frequent evidences of arrogance and callousness on the part of the Government. I think you have already said that. Mr. RUSSELL. I would agree with all of the statements made by my previous colleagues and by Mr. Kilpatrick. Senator ARMSTRONG. Let me ask you this. I am now going to turn to the observations of Mr. Waller and again just ask if you will tell me what you think. I am not asking you to prove it or cite cases but, just out of your experience, whether you agree. Mr. Waller expresses a concern that to a large extent grand juries are merely a rubberstamp. That is exactly what he said. Is that true? Do they have the kind of independence that is contemplated in our traditional concepts of grand juries? Mr. RUSSELL. I don't think so. I think that most of the time they are a rubberstamp. Senator ARMSTRONG. Did you hear Mr. Waller's discussion of what happened when the reviewer in the Omni case was, in effect, saying to the prosecutors that he didn't think they had a criminal case? Do you recall what he said about that? Mr. RUSSELL. Yes. Senator ARMSTRONG. That, 3 days later, the reviewer was presented with what he termed manufactured evidence, and then they went ahead and prosecuted the case. If that is true, what should the Department's attitude be? I mean, if that is true-we don't know whether it is, but that is what we are told-if that is true, what does that say not only about the person proces Mr. that Opinio Even Sen have Wall at M person who manufactured the evidence but also about the review process itself? Mr. RUSSELL. Well, I think we need the review process. But in that particular situation I think there is no excuse for it. In my opinion as a lawyer, it is unethical, it is improper, and perhaps even illegal. Senator ARMSTRONG. Well, Mr. Russell, I am grateful to you. I have got several dozen notes, but I think the main issues that I wanted to ask you about we have covered. I am going to go back fairly carefully with Mr. Kilpatrick and Mr. Grossman and Mr. Waller, and Mr. Vaira―am I saying your name right? Mr. VAIRA. No, sir; it is as "Vyra." Senator ARMSTRONG. Thank you. I apologize. We will do that this afternoon. If your plane for Kansas City is at National, and if you leave almost at once, you will catch it. Mr. RUSSELL. Thank you very much, Senator. I appreciate the opportunity to come here. Senator ARMSTRONG. We are grateful to you for doing that. [Mr. Russell's written prepared testimony follows:] National Association of NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERSBUXAM Intro my na Assoc of th on be tori the 4,0 enga It Our of adm mat led Cr SUITE 550 1815 H STREET NORTHWEST WASHINGTON, DC 20006 OV OC Introduction Mr. Chairman and distinguished members of the Subcommittee, my name is David W. Russell, and I am President of the National Association of Criminal Defense Lawyers. I am deeply appreciative of the opportunity to appear before you today to present testimony on behalf of the Association regarding investigative and prosecutorial abuses in IRS tax cases and what can be done to bring the situation under control. The National Association of Criminal Defense Lawyers (NACDL) is a nationwide, voluntary bar association comprised of over 4,000 lawyers and law professors, most of whom are actively engaged in defending criminal prosecutions and individual rights. It was founded 26 years ago to promote study and research in the field of criminal defense law, and to encourage the integrity, independence and expertise of criminal defense lawyers. Throughout our history, we have worked to protect the rights and liberties of those accused of criminal offenses, and to promote the proper administration of justice. We have pursued these goals through a variety of educational and public service activities, including national training programs, publications, committee activities, legislative action, and by appearing as amicus curiae in significant criminal justice cases. We appreciate and share the Subcommittee's deep concern over the kinds of investigative and prosecutorial abuses which occurred in the cases of United States v. Kilpatrick, 594 F.Supp. 1324 (D.Colo. 1984) and United States v. Omni International Corp., (D.Md. May 15, 1986). We heartily commend the Subcommittee's interest in pursuing aggressive oversight in such situations. It is our position, however, that, particularly with regard to abuses occurring before the grand jury, oversight alone is not enough. A legislative solution is necessary, and I would like today to suggest the following elements of any such solution: 1) Create strong and effective sanctions for violations 2) Not only preserve, but strengthen, the principles The restoration of meaningful sanctions for violations of Rule 6 is now absolutely essential, in order to vindicate the protections established by Congress. Justice Marshall has stated that: The only way to allow even minimally effective enforcement 38 Cr.L. at 3127. He observed that the proscriptions of Rule 6 are short and simple, and that violations are rare, likely to go undetected by defendants, and easy to avoid by any competent prosecutor. In this regard, I would also call the Subcommittee's attention to a resolution expected to be considered and passed in August by the full House of Delegates of the American Bar Association. The proposed resolution responds to the Mechanik case by calling upon Congress to enact legislation "to create sanctions for violations of Rule 6 of the Federal Rules of Criminal Procedure." The resolution and the accompanying report of the ABA's Criminal Justice Section have been furnished separately to Subcommittee staff. If the Congress were reluctant to adopt the type of flat, per se rule of dismissal urged by Justice Marshall, it might wish to consider establishing a more restrictive triggering event for the dismissal sanction, such as a "substantial failure to comply" (the standard utilized in section 1867 of title 28, governing dismissal of an indictment for error in the selection of either the grand or petit jury) with the procedural rules or of constitutional guarantees. This would preclude dismissal where the violation was of no possible consequence--for example, in the Rule 6 (d) context, "brief intrusions on the proceedings during which no testimony is taken nor questions asked nor statements made about the case by grand jurors such as the delivering of a note to the prosecutor by his secretary or the repair of a switch by a maintenance man. United States v. Pignatiello, 582 F.Supp. 251, 254 (D.Colo. 1984). We would caution that no showing of actual prejudice flowing from the grand jury defect should be required for dismissal of the indictment, as was suggested by the "harmless error" analysis in Justice O'Connor's concurring opinion. Such a requirement would necessitate disclosure of the entire grand jury record before trial, and would result in the need for lengthy pre-trial proceedings scouring the record for traces of taint. detailed detour would be likely to impede significantly the swift administration of justice, and would accomplish little that could not be accomplished by use of a "substantial failure to comply" test. Such a |