Philadelphia prosecutors should revive indicting grand juries in selected violent-crime cases as a weapon to drive up conviction rates and reduce witness intimidation, a former top prosecutor said Friday.
Walter M. Phillips Jr. said using grand juries to indict the city's most violent criminals would spare many terrified witnesses from having to testify at preliminary hearings. Such hearings are now the key early proceedings in which evidence is heard in criminal cases and a judge decides whether there is sufficient evidence to proceed to trial.
Appearing before a state Senate committee exploring witness fear in Philadelphia, Phillips said Pennsylvania and Connecticut were the only states that do not have indicting grand juries. Federal prosecutors also use such juries to bring charges.
In grand jury proceedings, witnesses are not subjected to defense cross-examination. In fact, defense lawyers even may be barred from entering the jury room.
Many witnesses may not even have to show up for the grand jury in the first place. "For over 50 years," Phillips testified, "courts have held that hearsay evidence is admissible before a grand jury."
Implementing such juries could take action by the state Supreme Court or changes in state law. Indicting grand juries were abolished in Pennsylvania in 1976 in what was touted as a reform, with the aim of streamlining the court system.
Phillips' proposal seems certain to be given serious consideration. Philadelphia District Attorney Seth Williams, who took office in January, endorsed the proposal later Friday.
Moreover, Phillips is pushing his plan as member of a new blue-ribbon panel, appointed by the state Supreme Court, that is studying ways to overhaul the Philadelphia criminal justice system.
Phillips has long been one of the lions of the Philadelphia legal community, most famously serving as a special prosecutor uncovering political corruption in Philadelphia and Harrisburg in the mid-1970s.
His successor as special prosecutor, Bernard L. Siegel, took a diametrically opposed position during his testimony before the panel. Now a prominent defense lawyer, he said the return of indicting grand juries would unfairly strip away the rights of defendants - and pointlessly delay defendants' having to face their accusers in open court.
While condemning anyone who would threaten or harm a witness, Siegel asserted that witness intimidation "is not a critical problem" in Philadelphia.
The hearing Friday was the second called by State Sen. Stewart Greenleaf (R., Montgomery), chairman of the Judiciary Committee, to explore ways to reform the Philadelphia courts.
Greenleaf, long an important gatekeeper on legal reform in Pennsylvania, also greeted the proposal coolly. He said bringing back indicting grand juries might be a more far-reaching shake-up than necessary.
"The preliminary hearings play a legitimate first role," he said. "They weed out cases."
After hearing testimony from Williams and from victims and their advocates, Greenleaf said other steps, such as increasing state funding for relocation programs or using more video testimony, could help relieve the fear felt by too many witnesses.
Greenleaf, like the high court, appointed his panel in response to an Inquirer series, published in December, that portrayed a Philadelphia criminal justice system in crisis.
The newspaper disclosed that defendants in nearly two-thirds of all violent crime cases were walking free on all charges - and that the Philadelphia District Attorney's Office had one of the nation's lowest conviction rates.
The stories quoted veteran prosecutors and judges as saying that threats against witnesses had become routine.
Often, those threats have been relayed during preliminary hearings in police districts, where witnesses frequently mingle with defendants and their friends and family. Williams recently proposed moving all such hearings to the Criminal Justice Center in Center City.
Phillips asserted that "the elimination of a preliminary hearing in favor of an indictment is entirely constitutional."
Federal and appellate courts have long held, he said, that an accused person's right to confront accusers, as enshrined in the Sixth Amendment of the Bill of Rights, does not apply until trial.
Pennsylvanians are more familiar with investigative grand juries, which local and state prosecutors have long used to dig into political corruption, corporate wrongdoing, or other complex scandals.
But those investigative juries may only recommend charges in the form of presentments, not actually bring charges.
In a separate interview Friday after his testimony to the Senate panel, Williams said he favored reinstating indicting grand juries in Pennsylvania for selected cases, such as those involving shootings or violent crimes in which victims or eyewitnesses have been threatened.
Such juries, he said, should be an option open to prosecutors - "a tool we can use if it's appropriate."
Phillips, who chairs the state Commission on Crime and Delinquency, said witness fear was a crucial problem.
"A single publicized act of retaliation on a witness can have a profound impact on other witnesses to the same crime or other unrelated crimes," he said.
"There is no question that, as The Philadelphia Inquirer reported last December, witness intimidation in the Philadelphia criminal justice system has become a major impediment to prosecuting violent crime in Philadelphia and thus had undoubtedly contributed to lowering the conviction rate for these crimes."
Under his proposal, thousands of the 60,000 cases brought each year in Philadelphia would still be subject to preliminary hearings in Municipal Court.
But using indicting grand juries in some key cases, Phillips said, would "reduce a witness' exposure to threats and the generally intimidating experience of going to court and testifying in public multiple times."