Sunday, September 21, 2008

A Proverbial Ham Sandwich

Sol Wachtler, the former Chief Judge of the New York State Court of Appeals, who had his own little run in with the law, famously said that prosecutors had so much unfettered control over grand juries that they could indict a ham sandwich. Grand juries are supposed to act as a buffer between the power of the state and its citizens. They are supposed to review evidence fairly and impartially and decide whether there is probable cause to accuse someone of a felony crime and return an indictment. But in reality, prosecutors control virtually every aspect of proceedings before grand juries.

In the State of New York, grand juries are composed of at least 16 and no more than 23 people. It takes a vote of a majority of a quorum of the grand jury to return an indictment. An indictment is a formal accusation of a felony crime. Grand jurors sit in a room and listen to testimony. Prosecutors have witnesses come into the room, swear to tell the truth, and then ask them questions. A stenographer is present, but grand jury proceedings are secret. It is illegal for prosecutors, grand jurors or other employees such as clerks and stenographers to release information about grand jury testimony.

Prosecutors issue grand jury subpoenas to individual witnesses they wish to have come in to testify in front of grand juries. Sometimes, people refuse to testify on the grounds it might incriminate them. They "Take Five" or exercise their rights under the Fifth Amendment to the United States Constitution. Even innocent people can take the Fifth. It is not the haven of the guilty.

However, prosecutors may grant witnesses who invoke their rights under the Fifth Amendment immunity from prosecution and thereby attempt to force their testimony. Once immunity is granted someone whose grand jury testimony is sought may either testify or face contempt charges and jailing.

Even if someone receives immunity, if they lie to the grand jury they can be prosecuted for perjury. Here are some interesting excerpts from New York State's Criminal Procedure Law;

§ 50.10 Compulsion of evidence by offer of immunity; definitions of terms

The following definitions are applicable to this article:

1. “Immunity.” A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this subdivision, be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein, possesses “immunity” from any such conviction, penalty or forfeiture. A person who possesses such immunity may nevertheless be convicted of perjury as a result of having given false testimony in such legal proceeding, and may be convicted of or adjudged in contempt as a result of having contumaciously refused to give evidence therein.

2. “Legal proceeding” means a proceeding in or before any court or grand jury, or before any body, agency or person authorized by law to conduct the same and to administer the oath or to cause it to be administered.

3. “Give evidence” means to testify or produce physical evidence.

§ 190.40 Grand jury; witnesses, compulsion of evidence and immunity

1. Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.

2. A witness who gives evidence in a grand jury proceeding receives immunity unless:

(a) He has effectively waived such immunity pursuant to section 190.45; or

(b) Such evidence is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive.

So ... what to do if you get a grand jury subpoena? Get a lawyer. What if you think you might be in danger of being viewed as a potential witness in a criminal case? Get a lawyer.

What does this have to do with kink? Unlike many of the other recent arrests and raids, the Rapture bust involved the execution of a search warrant and the seizure of various records and other items of evidence. Promoting prostitution is a felony. In order for a felony to be charged in New York, a case must be presented to a grand jury. In addition, if the New York County District Attorney's Office wants to add more charges like money laundering or tax evasion, or charge more people, they'd present evidence to a grand jury. Prosecutors issue subpoenas and put witnesses in front of grand juries and ask 'em questions. Witnesses could be both dommes who worked at Rapture and clients who sessioned there.

Again, my usual admonition that nothing here is legal advice. Ya can't rely on any a this submissive guy nonsense. And dommes, don't use yer clients fer yer lawyers. Guys, make 'em find non-client counsel, would'ja!

This could all just blow over. But ... isn't it better to hope for the best and plan for the worst? After all, I like to picture y'all rollin' ... not bein' ham salad.


Anonymous said...

Just curious: What could the average client tell a grand jury about money laundering or tax evasion or anything else having to do with Rapture's finances? Assuming the client got immunity before talking about having been there, all he could say was "I paid cash, and I don't know what they did with it." Most people don't know what businesses they deal with do with payments-it's not unusual.

Anonymous said...

This information is very useful. Thanks for posting it.

advochasty said...

Just-curious-anonymous -

That's a good question.

Just to clarify. Immunity is conferred automatically in New York by virtue of responsive testimony before a convened grand jury, unless the prosecutor makes someone sign a waiver of immunity. Waivers are typically executed by people arrested and charged in a felony complaint or by someone who, as a target of a grand jury, faces a direct presentation. You sign a waiver if you want to tell your side of things in the hopes of heading things off at the pass and avoiding being charged. This is pretty rare.

To answer your question, prosecutors have to establish the existance of a cash business. Dommes who worked in a house under investigation or clients who sessioned there could do this by way of immunized testimony.

Clients and dommes could also be compelled by an immunity grant to testify about what sort of activities occurred at a house establishing the existance of "sexual conduct" for money - the underlying illegal activity necessary to prove that the money received by the house came from "unlawful activity".

Other evidence might establish other elements necessary to make out money laundering and/or tax evasion charges. A "typical client" does not need to know everything about the money trail to be potentially useful as a witness.

Other anonymous -

Glad to be of some service. While I can't say I'm happy you find it useful ... I hope it is helpful. Good luck out there everyone.