Journal of Criminal Law and Criminology

Volume 65 | Issue 2 Article 1

1974

The Investigation and Prosecution of PoliceCorruptionHerbert Beigel

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Recommended CitationHerbert Beigel, The Investigation and Prosecution of Police Corruption, 65 J. Crim. L. & Criminology 135 (1974)

Tox JouwAx op Canaz AL LAW & CRnmLoaGyCopyright C 1974 by Northwestern University School of Law

CRIMINAL LAWTHE INVESTIGATION AND PROSECUTION OF POLICE CORRUPTION

HERBERT BEIGEL*

INTRODUCTION

Within the last few years there has been amarked proliferation of federal investigations andprosecutions of state and local officials for officialmisconduct and corruption. So active has thefederal government become in investigating thelocal political arena that state and city politiciansand police officers are being investigated, indictedand often convicted for a wide variety of violationsof federal criminal statutes. Because this intenseinterest in the affairs of local officials by federalinvestigators is a relatively recent development,little attention has been given to the changes inthe application of federal law, federal jurisdictionand constitutional protections which have accom-panied these investigations. Questions concerningpolitical motivations behind such federal incur-sions into local affairs have also beclouded anyreal attempt to delineate objectively the legal andpractical effects of investigations of local corrup-tion.'

The purpose of this article is to focus on onerecent and controversial development-the in-

* B.A. 1966, Brandeis University; J.D. 1969, Uni-versity of Pennsylvania School of Law; Member ofDistrict of Columbia and Illinois Bars.

Much of the factual material found in this article isbased on the author's tenure from September, 1970 toNovember, 1972 with the Organized Crime and Rack-eteering Section of the Criminal Division of the UnitedStates Department of Justice. The views expressed inthis article are his own and do not necessarily coincidewith the views of officials of the Justice Department.In addition, much of his time was spent with the Chi-cago Strike Force, one of eighteen field offices of theRacketeering Section and nothing in this article isintended to reflect on any government lawyers orpersonnel of agencies with whom he worked.

IDuring my assignment with the Chicago StrikeForce, I found little political influence in the investiga-tions which I conducted, the enormity of the federalbureaucracy effectively blunting any overt politicalbias that might affect a decision on whether or not toinvestigate local corruption. More particularly, theexperience of supervising an investigation of policecorruption led me to the conclusion that such investi-gations were at least as much the product of "an ideawhose time has come" as they were the consequence ofany political bias.

vestigation and prosecution of police corruption.This analysis will identify the specific methodsemployed by federal prosecutors to subject localpolice officials to federal prosecution, 2 therebyoffering insight into the intricacies of the investi-gation of one governmental body by another. Inaddition, the federal investigation of state andlocal corruption has raised new questions aboutthe proper role of federal law enforcement. Byanalyzing the problems which arise in one par-ticular type of investigation, it will also be possibleto point out new ways in which to improve therelations between state and federal agencies.

TYPES or PouIcE CoxupmnozN

Essentially, police corruption falls into twomajor categories-external corruption, which con-cerns police contacts with the public, and internalcorruption, which involves the relationshipsamong policemen within the workings of thepolice department. The external corruption gen-erally consists of one or more of the followingactivities:

(1) Payoffs to police by essentially non-criminalelements who fail to comply with stringent statutesor city ordinances; or, payoffs by those in parti-cular need of police protection, who are willingto pass money to individual officers or groups ofofficers (for example, businessmen dispensing liq-uor, businessmen located in high crime areas, in-dividuals operating any type of business requiringa license, automobile towing operations, attorneyswho represent those guilty of minor violations ofthe law where police testimony constitutes most2 Since the authority or jurisdiction of any single

police department is confined to a single jurisdictionwithin a state, it traditionally has been assumed thatthe investigation and elimination of police corruptionshould be left to the state. That such enforcementrarely happens may be explained by any one of thefollowing: (1) One cannot effectively investigate him-self; (2) Local government officials are themselves pay-ing the police for favors; and (3) The citizenry largelyacqueses in and enjoys the favors and leniency grantedby the police who can be bought.

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HERBERT BIGEL

of the state's case, and individuals who repeatedlyviolate the traffic laws).

(2) Payoffs to police by individuals who con-tinually violate the law as a method of makingmoney (for example, prostitutes, narcotics addictsand pushers, and professional burglars).

(3) "Clean Graft" where money is paid to policefor services, or where courtesy discounts are givenas a matter of course to the police.

These manifestations of external corruptionoften follow the established hierarchial structureof the police department. For example, a tavernowner who wishes to avoid arrest by members ofa vice squad investigating violations of the liquorlaws must be assured that his payments to a singleofficer will guarantee that the recipient either hasthe power to direct other officers not to botherthe tavern owner or shares the money with thosewho have command responsibilities. For this rea-son, the payment of money to the police by busi-nessmen, who are particularly vulnerable to arrestfor minor statutory violations, generally assumesa highly organized structure of distribution. Wherethe method of distributing the proceeds of collec-tion becomes too burdensome, a more sophisticatedmethod may develop. A commander of a district,who knows that collections can easily be extractedfrom tavern owners, may simply charge an officerwho wants to be assigned to the vice squad a fixedfee per month regardless of the amount actuallycollected. Similarly, those in charge of appointingcommanders of districts may extract a monthlycharge in exchange for awarding that position.

Sophisticated methods of corruption also existwhere the police receive money from organizedcrime. Because large scale bookmaking, narcoticspeddling and other forms of organized criminalactivity are highly structured, payments to thepolice tend to be highly organized. Thus, protec-tion for a syndicate's numerous wire rooms in adistrict might require payments to the commanderwho will direct his subordinates not to harasscertain establishments. The commander will eitherhave to pay his officers or allow them to keep aportion of the proceeds which they collect.

In all cases of external police corruption, pro-tection is the service bestowed, either in overlook-ing violations of the law or in providing some addi-tional police aid or assistance. Because the policehave broad discretion in enforcing the law, theestablishment of an organized system of corruptiondoes not require extensive covert activity. As long

as those who pay are satisfied with the service,exposure is unlikely.

Internal corruption exists as a result of a desireof individual officers to improve their working con-ditions or to achieve higher status in the policedepartment. It may include:

(1) Payment of money to join the police force.(2) Payment of money to higher ranking officers

for better shifts or assignments.(3) Payment for choice vacation time.(4) Strict adherence to a code of silence con-

cerning external police corruption.(5) Payment for promotions.(6) Payment for an assignment which will yield

lucrative kick-backs.

Most types of internal corruption seldom arepublicized and usually are not the subject of fed-eral prosecution. However, because they are ofteninterdependent, the elimination of external corrup-tion may have the effect of eliminating manyforms of internal police corruption. Thus, wide-spread investigations and prosecutions of externalpolice corruption may have a potentially signifi-cant impact on all aspects of police corruption.

FEDERAL AumHORITY FOR THE INVESTIGATION AND

PROSECUTION OF POLICE CORRUPTION

A. Tie Hobbs Act

Although Congress has recently passed legisla-tion which authorizes federal investigative andprosecutorial efforts against police corruption inthe area of organized gambling,3 the most signifi-

318 U.S.C. § 1955 (1970), enacted as part of the Or-ganized Crime and Control Act of 1970. This statuteexpanded federal jurisdiction over gambling activitiesby proscribing the conduct of an illegal gambling busi-ness under state law by five or more persons and whichgrossed $2000 in any single day, or remained in sub-stantially continuous operation for a period in excess ofthirty days, whether or not the business involved anyinterstate activity. At the same time, and as part of thesame Organized Crime Act of 1970, Congress enactedanother statute which incorporates within the illegalgambling business ambit of section 1955 state officialswho either through official acquiescence or active par-ticipation facilitate the gambling business, althoughonly the enforcement of state laws may thus be ob-structed. See 18 U.S.C. § 1511 (1970).

Although couched in terms of obstruction of justice,section 1511 was a congressional response to the con-siderable amount of evidence that intrastate gamblingflourishes inpart because of protection payments madeto police and other local officials. Despite the congres-sional initiative, the utility of these statutes in effortsagainst police corruption is still in doubt. Numerousfactors contribute to the failure of these laws to be usedeffectively. First, there is difficulty in establishing the

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cant enlargement of federal powers and jurisdictionhas come through expanded use of a well en-trenched federal statute known as the Hobbs Act.This statute provides in part:

(a) Whoever in any way or degree obstructs,delays, or affects commerce or the movement ofany article or commodity in commerce, by robberyor extortion or attempts or conspires to do so, orcommits or threatens physical violence to anyperson or property in furtherance of a plan or pur-pose to do anything in violation of this section shallbe fined not more than $10,000 or imprisoned notmore than twenty years, or both.

(b) As used in this section-(1) The term "robbery" means the unlawful

taking or obtaining of personal property from theperson or in the presence of another, against hiswill, by means of actual or threatened force, orviolence, or fear of injury, immediate or future, tohis person or property, or property in his custodyor possession, or the person or property of a relativeor member of his family or of anyone in his com-pany at the time of the taking or obtaining.

(2) The term "extortion" means the obtainingof property from another, with his consent, inducedby wrongful use of actual or threatened force vio-lence, or fear, or under color of official right.

(3) The term "commerce" means commercewithin the District of Columbia, or any Territoryor Possession of the United States; all commerce

"five person" requirement of section 1955, especiallyin light of the limiting construction given that statuteby some courts. See United States v. Harris, 460 F.2d1041 (5th Cir. 1972)(holding that low level employeesare not "conducting"); United States v. Riehl, 460F.2d 454 (3d Cir. 1972) (holding that customers do notfall within the purview of the statute but street levelemployees do). But see United States v. Mainello, 345F. Supp. 863 (S.D.N.Y. 1972). Second, successful in-vestigations under sections 1955 and 1511 often in-volve court authorized wiretapping which havemet withserious difficulties in recent years due to non-compliancewith the statutes' procedural requirements. See UnitedStates v. Giodano, 469 F.2d 522 (4th Cir. 1972), cert.denied, 405 U.S. 955 (1973); United States v. Becker,461 F.2d 231 (2d Cir. 1972). See also United States v.Chavez, 478 F.2d 512 (9th Cir. 1973); United States v.Roberts, 477 F.2d 57 (7th Cir. 1973); United States v.King, 472 F.2d 1 (9th Cir. 1973); United States v.Robinson, 468 F.2d 189 (5th Cir. 1972). Third, federaljudges probably have not always been enthusiasticabout cases brought under these statutes which some-times involve as many as thirty defendants in a singlecase and require extensive pretrial work. Fourth, thereis undoubtedly the realization that evidence of payoffsto police is found not through wiretapping or testimonyof conventional witnesses, but only through informantswho are not willing to testify in court. Finally, there isalso the traditional reluctance of the Federal Bureauof Investigation to employ undercover agents whowould have the opportunity to obtain direct and usableevidence of police and official corruption.

between any point in a State, Territory, Posses-sion, or the District of Columbia and any pointoutside thereof; all commerce between points with-in the same State through any place outside suchState; and all other commerce over whichthe United States has jurisdiction.4

Two elements of the Hobbs Act are relevant toan investigation of police corruption: (1) themeaning of extortion; and (2) the commerce re-quirement. The following examples will illustratetheir importance.

An officer observes a youth leaving a tavernwith beer. He stops the boy and checks his iden-tification which shows him to be under the legalage for purchasing alcoholic beverages. The officerthen escorts the youth into the bar, confronts theowner or the bartender with the apparent viola-tion, and receives an admission that he should nothave sold the beer. The officer finds a privatecorner of the tavern to discuss the matter furtherwith the bartender or owner and, being very care-ful not to be overheard, says,

"What are you going to about this? You couldlose your license."

"How about if I give you $100.""That's not enough. I have others to take care

of, you know.""I'll give you $300.""O0.K."J

The officer accepts the $300 and releases the minorwithout making any arrest. He does not file areport of the incident, although police regulationsrequire a report whether or not an arrest is made. 5

Or, a police officer may enter a tavern to checkthe patrons' identifications and the owner usesthis occasion to complain that his customers' cars,which are parked outside in a no parking zone, areconstantly being ticketed or towed away. "Thishurts my business" explains the tavern owner.The owner also tells the officer that the constantchecking of identification by him and other mem-bers of the vice squad drives customers away. Theofficer listens to the complaints and the followingexchange takes place:

"Why not cut out all this nonsense?"'How much will it cost me?"

4 18 U.S.C. § 1951 (1970).6This incident is paraphrased from the court records

and trial testimony in United States v. Gill, 490 F.2d233 (7th Cir. 1973) and United States v. Pacente 490F.2d 661 (7th Cir. 1973).

HERBERT BEIGEL

$50 a month and you won't have any problems.""O.K.6

Whether these practices constitute extortionunder the Hobbs Act and whether there is therequisite effect on commerce are the crucial prob-lems facing the prosecutor who wishes to proceedagainst these officers. In analyzing the Hobbs Act,it must be emphasized that the fear, if any, whichis felt by the tavern owner relates directly andsolely to the enforcement or non-enforcement ofthe law by the police. In both examples the victimswere concerned that the law would be enforced.Naturally, the tavern owner concludes that hewould be better off paying the police and avoidingarrest or what he conceives to be unnecessaryharassment. Hence, once the bar owner receivesthe slightest indication that the officer is willing tomake a deal, he will often conclude that the pay-ment of money is the only practical solution.

The expanding concept of what constitutes ex-tortion by a public official under the Hobbs Acthas largely been led by the Courts of Appeals forthe Third and Fifth Circuits, whose opinions haveencouraged prosecutors, with the support of trialcourts throughout the country, to begin investiga-tions of the activities of local officials. In UnitedStates v. Hyde7 the attorney general of Alabama,his assistant, and a political supporter were in-dicted under the Hobbs Act. In substance theywere charged with extorting money from life in-surance companies and small loan companies inAlabama. In return for paying money to the de-fendants, the insurance companies were assuredthat the attorney general would refrain from en-forcing the state securities laws while the loancompanies were given assurances that they wouldnot be sued for charging illegally high interestrates.8 Because of the evident willingness of the

6This incident is adapted and modified from therecords and trial testimony in United States v. DeMet,486 F.2d 816 (7th Cir. 1973). Conversations like thosequoted occur in an almost endless myriad of factualcontexts ranging from an officer who approaches abusinessman for monthly payments in exchange foradequate police service to an officer receiving moneyfrom individuals engaged in serious criminal activities(for example, narcotics or robbery offenses). The essenceof external police corruption, however, is always thesame and focuses on the willingness of the victim to paymoney in exchange for either protection or favors.

7 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S.1058 (1972).

8 Some of the evidence produced at the trial indi-cated that, even where the attorney general was re-quired by law to disapprove an improper sale of securi-ties or to file suit against a loan company, he wouldrefrain from taking any action if paid money by thecompany involved. Id. at 821.

insurance companies and loan companies to paymoney to the defendants to avoid being subjectedto sanctions for their unlawful conduct, the de-fendants vigorously argued that the payment ofmoney by the companies was bribery and there-fore outside the scope of the Hobbs Act.9 Thecourt, however, rejected the defendants' argu-ments. In affirming the defendants' convictions,the court assumed that the payors' satisfactionwith the results obtained was irrelevant and con-cluded:

Threatening to take official action-even where itis action that the official is duty bound to take-for the purpose of coercing the victim to pay theofficials is extortion. 0

Although the court did not discard the "threat"requirement, it required a threat no more explicitthan the belief by the victim that unless he paidthe money the official would enforce the law. Theabsence of reliance by the court on an explicitthreat theory of extortion is repeatedly demon-strated by the court's willingness to overlook thelack of evidence of threats or coercion on some ofthe payments made by the companies:.

5 If the conduct were considered bribery, the de-fendants would not be subject to indictment under anyfederal statute, except perhaps income tax evasion ifthe money was received ana not reported. Why theHobbs Act included extortion but not bribery is anopen question, but the answer is no doubt partially dueto the fact that the Hobbs Act came into being inresponse to labor unrest and violence, rather than anyneed to reach all instances involving the payment ofmoney to public officials. For a detailed survey of thehistory and background of the Hobbs Act, see Stem,Prosecutions of Local Corruption Under the Hobbs Act:The Unnecessary Distinction Between Bribery and Ex-tortion, 3 SEToN HALL L. REv. 1 (1971).

10 448 F.2d at 832. See also United States v. Sopher,362 F.2d 523 (7th Cir.), cert. denied, 385 U.S. 928 (1966),which involved the kickbacks to a public official forconstruction contracts. The court did not discuss thedistinction between bribery and extortion where apublic official is concerned.

1In this context the court quoted with approval adefinition of extortion proposed by the Drafters of theMODEL PENAL. CoDE which reads:

The threatened harm need not be 'unlawful.' Theactor may be privileged or even duty bound toinflict the harm which he threatens; yet if he em-ploys the threat of harm to coerce a transfer ofproperty for his own benefit he clearly belongsamong those to whom theft sanctions should beapplied. The case of the policeman who is under aduty to make an arrest illustrates this point. Histhreat to arrest unless the arrestee pays him moneyis clearly extortionate although the policemanwould be derelict if he did not arrest.

448 F.2d at 833, n.27. The textual examples of policecorruption demonstrate that an official commits extor-tion when he uses the power of his office and the vic-tim's belief that he can and will enforce the law if notpaid.

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The jury could infer that these people knew of thegeneral pattern of extortion and sought out Hydewith the knowledge that they would have to dealwith him eventually in order to get these issuesapproved. Even if these persons were not coerced,that is, they were really bribes, the jury could findthat other payments were made by the victimscoerced into paying extortion.u2

Although the court failed to clarify what degree ofcoercion should be required to elevate bribery intoextortion, it did attempt to draw a distinctionbased on who initiated the discussions which ledto the payments. In effect, this limits extortionto instances where the public official seeks out thevictim:

The distinction from bribery is therefore the initia-tive and purpose on the part of the official and thefear and lack of voluntariness on the part of the vic-tim.P

The court did not explicitly define "voluntari-ness." Instead, it recognized that, because thevictim's "fear" emerges from knowing that thelaw will be enforced unless money is paid, onlythe most ambiguous approach by the official isneeded to give the victim the knowledge that apayment will be accepted and will have the de-sired effect. Indeed, one can argue that the official'smere acceptance of money constitutes extortion.To accept that position would, of course, eliminateany distinction between the concepts of briberyand extortion. Hyde did not reach this question,but simply concluded that once the official acceptsthe money the jury must decide whether the pay-ment was made as a result of bribery or extortion.The inherent difficulty in distinguishing betweenbribery and distinction renders the charge to thejury based on Hyde extremely beneficial to theprosecution. The natural reluctance of a defendantto argue "Acquit me because it's bribery, notextortion" combined with the current appeal ofpublic corruption cases makes the prosecution'stask much easier. Once a case goes to the jury,any esoteric differences between extortion andbribery will probably have little effect on thefinal result. For this reason, Hyde, in not decidingas a matter of law whether the officials chargedcommitted extortion or bribery, anticipates thedeath knell of any meaningful defense based onthe theory that what was committed was bribery,not extortion. In two recent cases, the Court of

12 id. at 834.11 Id. at 833.

Appeals for the Third Circuit has further hastenedthat development.

In United States v. Addonizio4 fifteen individ-uals, including the mayor of Newark, New Jersey,were charged with extortion and conspiracy tocommit extortion. The extortion charges involvedkickbacks required to be paid to public officialsby contractors in return for the awarding of con-tracts on public works buildings. 5 Neither thetrial court nor the court of appeals was troubledby the lack of evidence of specific extortionatethreats directed at the victims. 16 In affirming the

convictions, the court of appeals held that theissue of extortion was a jury question, since there"could be extortion when contractors would suc-cumb in advance to the pressure they knew wouldbe forthcoming." 17 In effect, the court held thatit was not error for a jury to find that extortionwas committed when there is evidence that abusinessman or a potential victim is aware that apublic official's inodus operandi is to refrain fromdoing certain acts only when he is paid money.Given this interpretation, it is difficult to conceiveof a clear cut example of payment of money to a

14451 F.2d 49 (3d Cir.), cert. denied, 405 U.S. 936(1972).

' Id. at 55. According to one government witness, adefendant had said:

Everybody in Newark pays 10% or they don'twork in and they don't get paid in Newark.

Id. One contractor also tried to reduce a 10 per centkickback to 5 per cent and was turned down. Id. Therewas also some testimony involving physical force-"You pay your ten per cent or I'll break your leg." Id.at 57. But the overall scheme did not depend on suchthreats but was a standardized method of doing busi-ness. Contractors in Newark knew that in order toobtain public business they would have to open uptheir pockets to city officials. The function of the threatwas simply to keep the occasional straying contractorinline.

16 The trial court had instructed the jury that "Themere voluntary payment of money, unaccompanied byany [fear] of economic loss, would not constitute extor-tion." Id. at 78. Missing from this definition of extor-tion is any reference to express threats. Instead, theterm "voluntariness" is considered adequate to fulfillthe function of satisfying the "threat" requirement ofthe Hobbs Act. But lack of voluntariness, as shown byHyde, need not result from any express threat by thepublic official, but can arise simply because the victimknows that he is expected to pay. It now becomes pos-sible to find extortionate activity even where the victimfirst contacts the public official for the purpose of payinghim money if he does so in response to a belief (fearunder the Act) that otherwise he will be treated differ-ently than those who pay. Although no court of appealshas expressly held that a public official commits extor-tion even when the victim does the soliciting, this con-clusion is the logical consequence of connecting thethreat to the public office rather than to the personholding that office.

17 Id. at 73.

HERBERT BEIGEL

public official which the Addonizio court wouldrule as a matter of law to be bribery.18

In United States v. KenneyI9 the court of appealswent even further and completely eliminated anyrequirement of evidence of force, fear or duress.Kenney involved the alleged extortion of moneyfrom contractors by public officials. Where thetrial court in Addonizio had submitted the case tothe jury on a use of fear theory, the trial court inKenney added an instruction to the jury underthe "color of official right" clause of the HobbsAct.20 The court of appeals concluded that thedefinitional elements of extortion in the HobbsAct were phrased in the disjunctive,2' and that"under color of official right" does not requireproof of threats, fear or duress. The power ofoffice, which is the color of official right, is, ipsofacto, what constitutes coercion by a public offi-cial.u

Is As the court of appeals noted, the Hobbs Actdefinition of extortion wi lifted from a New Yorkstatute. See McKnmy's STAT. ANN. § 155.05 (1971).At least since 1942 the New York courts have distin-guished bribery from extortion on the basis that briberyis the paying of money to obtain influence over a publicofficial in the exercise of his duties, whereas extortioninvolves payment for what the payor was legally en-titled to anyway. See Hornstein v. Paramount Pictures,22 Misc. 2d 996, 37 N.Y.S. 2d 404 (1942). AlthoughAddonizio cited Hornstein with approval, it does notappear that the court accepted the New York courts'distinction between bribery and extortion. Rather, itrelied strictly on a broad concept of voluntariness. SeeStem, Prosecution of Local Corruption Under the HobbsAct: The Unnecessary Distinction Between Bribery andExtortion, 3 SETON IAn L. REv. 1 (1971).

19 462 F.2d 1205 (3d Cir.), as amended, 462 F.2d 1230(3d Cir.), cert. denied, 409 U.S. 914 (1972).

20 The relevant portion of the Hobbs Act reads:The term 'extortion' means the obtaining of prop-erty from another, with his consent, induced bywrongful use of actual or threatened force, violence,or fear, or under color of official right. (emphasisadded).

18 U.S.C. § 1951 (1970).21 According to the court:The 'under color of official right' language plainlyis disjunctive. That part of the definition repeatsthe common law definition of extortion, a crimewhich could only be committed by a public officialand which did not require proof of threat, fear orduress.

462 F.2d at 1229.12 As a practical matter, it is not difficult for the

prosecution to mold testimony in any police corruptioncase so that it reflects some action by the officer whichinitiates discussion of the payment of money. Thus,once threats, fear, or duress are eliminated as require-ments, any police officer who takes money can probablybe prosecuted for extortion. And even where it is clearthat the victim has initiated the discussion leading tothe payment, Addonizio will still allow extortion to befound if the victim reasonably thought that he mightas well raise the subject since he would eventually be

While these courts have expounded a liberalinterpretation of the Hobbs Act, these three casesdo not necessarily lead to the conclusion that ex-tortion under the Hobbs Act now encompassesevery type of payoff arrangement. Nowhere inKenney is there any discussion of the Hyde require-ment of initiation by the public official, althoughthe Addonizio court stated that payments made inresponse to the feeling of the inevitability of ademand constituted extortion. Inasmuch as Ad-donizio and Kenney involved the payments ofmoney to public officials as part of a widespreadkickback practice, the question whether the publicofficial must initiate the practice was not actuallyresolved by the Third Circuit and still remains apossible defense under these interpretations of theHobbs Act.

28

asked. A good example of this is a tavern owner whoseeks to join a "club" to pay officers not to come to hisbar and check identifications, and to provide expeditedservice. See United States v. DeMet, 486 F.2d 816 (7thCir. 1973); United States v. Braasch, No. 72 CR 979(N.D. Ill. 1973). Other courts have dealt with extortionby public officials but have relied on the traditionalrequirements of threat and duress. See United States v.Pranno, 385 F.2d 387 (7th Cir. 1967), cert. denied, 390U.S. 944 (1968); United States v. Sopher, 362 F.2d 523(7th Cir.), cert. denied, 385 U.S. 928 (1966); UnitedStates v. Kubachi, 237 F. Supp. 638 (E.D. Pa. 1965).Kubachi held that, because a payment to public officialsin return for the improper awarding to an equipmentcompany of a city contract to buy parking meters didnot involve the fear of economic loss by coercion, briberynot extortion was committed. The continued validity ofthis case in light of Addonizio and Kenney is doubtful.

23In United States v. DeMet, 486 F.2d 816 (7th Cir.

1973), the court held that the fear of economic harm bya tavern owner, who made monthly payments to thepolice, constituted extortion even where the confronta-tions with the police were friendly and where there wasevidence that the money was turned over voluntarily.The court framed the voluntariness issue as a jury ques-tion and concluded that the jury could properly findextortion. The court did not squarely confront the dis-tinction, if any, between bribery and extortion, stating:

Because we cannot accept defendant's view of thefacts, it is not necessary for us to reach the questionof whether bribery and extortion are mutually ex-clusive. Nevertheless, we note that at least one cir-cuit has held that they are not. See United States v.Kahn, 472 F.2d 272, 278 (2d Cir. 1973), cert. de-nied, 41 U.S.L.W. 3606.In Kahn the United States Court of Appeals for the

Second Circuit was confronted with a claim by thedefendants that under 18 U.S.C. § 1952 (1970), wherebribery is charged, proof that the defendants paidmoney in response to extortionate acts by public offi-dais is a complete defense. The court held that underPennsylvania law there was no provision for extortionas a defense to bribery, but it concluded, alongwith thetrial court, that evidence of extortion on the part of thepublic officials could be considered by the jury in de-termining whether the defendants had the requisitecriminal intent under Section 1952. The court alsoconcluded that "every bribery case involves at least

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Once the issue of extortion has been resolved,the only remaining hurdle to negotiate is thestatute's requirement that there be an effect oncommerce. However, since courts generally haveinterpreted the commerce requirement expan-sively, there is, as a practical matter, little diffi-culty satisfying this requirement.4 The only area

some coercion by the public official; the instances ofhonest men being corrupted by 'dirty money,' if notnon-existent, are at least exceedingly rare." UnitedStates v. Kahn, 472 F.2d 272, 278 (2d Cir. 1973). Thus,it may be said that the Kahn court, at least in theory,would accept the notion that under color of officialright extorton ipso facto eliminates a defenseof bribery,although the actions of the victim may be used by thedefendant public official to demonstrate that the requi-site criminal intent for extortion had not been proved.This approach, however, might run into difficulty if acourt was inclined to rule that bribery is irrelevantunder the Hobbs Act with regard to a public official.As stated in Kahn, evidence of bribery under Section1952 would only be relevant on the issues of intent andwillfulness. Id. at 278. In a Hobbs Act extortion case,however, where a public official is charged with extor-tion under the color of official right clause, it could beargued strongly that no willfulness or specific intent isrequired. Unlike Section 1952, which requires travel orthe use of interstate facilities with the intent to commita crime, the Hobbs Act does not appear to require anyspecific mental state. In the end, therefore, analysis ofthe decisions under Section 1952 bribery can be of littleaid in determining whether or not bribery is a defenseto a Hobbs Act extortion charge against a public official.

Although, as Judge Sweigert in DeMet made clear,the court was not deciding whether or not the distinc-tion between bribery and extortion is irrelevant underthe Hobbs Act, the Seventh Circuit may have the op-portunity to decide that issue in United States v.Braasch, No. 72 CR 979 (N.D. Ill. 1973), now pendingon appeal. In that case the defendant police officerswere convicted solely on the basis that they receivedmoney under color of official right. In its charge to thejury, the trial court did not require the jury to findeither threats, coercion, or initiation by the victims.

24See, e.g., United States v. DeMet, 486 F.2d 816(7th Cir. 1973) (where a tavern owner made smallmonthly payments of money to police and his liquorwas manufactured out of state); United States v.Augello, 451 F.2d 1167 (2d Cir. 1971), cert. denied, 405U.S. 1070 (1972) (where meat purchased from NewJersey for New York drive-in restaurant, and paymentsdepleted resources with which victim could purchaseout of state goods); United States v. DeMasi, 445 F.2d251 (2d Cir.), cert. denied, 404 U.S. 1167 (1971) (wheremeat and alcoholic beverages were purchased outsidethe state for use in a club and these deliveries wouldstop if the club were closed); Battaglia v. United States,383 F.2d 303 (10th Cir. 1967), cert. denied, 390 U.S. 907(1968) (where the owner of a bowling alley was forced toplace the defendant's pool table in his alley, althoughthe pool table had not been obtained by the defendantuntil interstate movement had ended). See also Espertiv. United States, 406 F.2d 148 (5th Cir.), cert. denied,395 U.S. 938 (1969); United States v. Amabile, 395F.2d 47 (7th Cir.), vacated in part, 394 U.S. 310 (1968);United States v. Pranno, 385 F.2d 387 (7th Cir. 1967),cert. denied, 390 U.S. 944 (1968); United States v. Pro-venzanno, 334 F.2d 678 (3d Cir. 1964), cert. denied,379 U.S. 947 (1969); Anderson v. United States, 262

of police corruption that may yet be beyond reachof the Hobbs Act is what has been described aspurely internal corruption and isolated gratuities.However, as will be seen later, even those officerswho cannot be prosecuted under the Hobbs Actmay nevertheless find themselves under federalindictment.

B. Federal Perjury Statutes

The federal perjury statute 5 and the federalfalse sworn declaration statute 6 have become

F.2d 764 (8th Cir.), cert. denied, 360 U.S. 929 (1959);United States v. Stirone, 168 F. Supp. 490 (E.D. Pa.1957), a ffd 262 F.2d 571 (3d Cir. 1958), reversed, 361U.S. 212 (1959).

All of these cases found the requisite nexus with com-merce. But see United States v. Crichley, 353 F.2d 358(3d Cir. 1965). In applying these cases to police corrup-tion, there is a strong basis to conclude that when apolice officer extorts money from any business whoseproducts are either delivered from or manufactured inanother state, the requisite effect on commerce is met.Similarly, it can even be argued that payments topolice by prostitutes, burglars, and other criminals willaffect commerce under the Hobbs Act if some minimalnexus with another state is proved.

25 18 U.S.C. § 1621 (1970) provides:Whoever, having taken an oath before a compe-

tent tribunal, officer, or person, in any case inwhich a law of the United States authorizes an oathto be administered, that he will testify, declare,depose, or certify truly, or that any written testi-mony, declaration, deposition, or certificate by himsubscribed, is true, willfully and contrary to suchoath states or subscribes any material matterwhich he does not believe to be true, is guilty ofperjury, and shall, except as otherwise expresslyprovided by law, be fined not more than $2,000 orimprisoned not more than five years, or both. Thissection is applicable whether the statement or sub-scription is made within or without the UnitedStates.26 18 U.S.C. § 1623 (1970) provides:

(a) Whoever under oath in any proceeding be-fore or ancillary to any court or grand jury of theUnited States knowingly makes any false materialdeclaration or makes or uses any other information,including any book, paper, document, record,recording, or other material, knowing the same tocontain any false material declaration, shall befined not more than $10,000 or imprisoned not morethan five years, or both.

(b) This section is applicable whether the con-duct occurred within or without the United States.

(c) An indictment or information for violation ofthis section alleging that, in any proceedings beforeor ancillary to any court or grand jury of the UnitedStates, the defendant under oath has knowinglymade two or more declarations, which are incon-sistent to the degree that one of them is necessarilyfalse, need not specify which declaration is false if-

(1) each declaration was material to the pointin question, and

(2) each declaration was made within theperiod of the statute of limitations for the offensecharged under this section.

In any prosecution under this section, the falsity of

HERBERT BEIG.L

powerful weapons for the prosecutor in the in-vestigation of public corruption. Both statutesdeal with false testimony under oath, and in aninvestigation of public corruption are most per-tinent at the grand jury stage.

When a prosecutor, with the aid of a grandjury, begins an investigation of police corruption,he initially has the benefit of only one or two wit-nesses who have paid money to a police officer.Y

a declaration set forth in the indictment or informa-tion shall be established sufficient for conviction byproof that the defendant while under oath madeirreconcilably contradictory declarations ma-terial to the point in question in any proceedingbefore or ancillary to any court or grand jury. Itshall be a defense to an indictment or informationmade pursuant to the first sentence of this sub-section that the defendant at the time he made eachdeclaration believed the declaration was true.

(d) Where, in the same continuous court orgrand jury proceeding in which a declaration ismade, the person making the declaration admitssuch declaration to be false, such admission shallbar prosecution under this section if, at the time theadmission is made, the declaration has not sub-stantially affected the proceeding, or it has notbecome manifest that such falsity has been or willbe exposed.

(e) Proof beyond a reasonable doubt under thissection is sufficient for conviction. It shall not benecessary that such proof be made by any particu-lar number of witnesses or by documentary or othertype of evidence.This statute was enacted as part of the Organized

Crime and Control Act of 1970 and, as can be seen fromparagraph (e), eliminates any evidentiary requirementsthat had been by virtue of common law development,subsumed under the perjury statute. Thus, there is noevidentiary mandate that proof of a violation must besupported by two witnesses or by one witness andcorroboration as is the case with Section 1621. Proof ofa false sworn declaration simply requires evidencebeyond a reasonable doubt.

The false declaration statute differs in other waysfrom the perjury statute. Proof of two inconsistentstatements by the witness to a degree that one of themis necessarily false will support conviction (paragraph(c)). On the other hand, a witness can admit that aprevious statement before the same grand jury wasfalse and thereby avoid indictment (paragraph (d)).Naturally, the elimination of the two witness rule hasbeen of great benefit to prosecutors, but neither thatchange nor the cure provision is specifically relevant tothe interesting uses to which either statute may be putby a prosecutor in an investigation of police corruptionor other local official corruption with which the textualdiscussion is concerned.

27This arises because, until the testimony and co-operation of a police officer or other "inside" witnessis secured, it is practically impossible to fashion a casewhich will set forth a conspiracy allowing a single in-dictment to be returned against a number of policeofficers who share in the proceeds of collections whichhave, perhaps, been made by only one of these officers.Without the testimony of this type of witness, indict-ments must be returned against each officer separatelyfor his own collections from individual victims becausethe victims will be unable, alone, to tie all the officers

The prosecutor often finds that calling the sus-pected officer to the grand jury to question himabout the alleged extortionate payments will onlyresult in the officer denying that payments weremade or invoking the privilege against self incrim-ination. If, at the time of his appearance beforethe grand jury, the officer is still on the policeforce and a regulation of the police departmentauthorizes the firing or suspending of an officerwho refuses to testify, the officer will probablychoose to answer all questions and save his job,hoping that his cooperation will convince thegrand jury not to return an indictment.2s Whilethe officer has this option, he must know thatthere is only the slightest possibility that his testi-mony will save him from indictment.29 If theofficer testifies and denies receiving any payments,the prosecutor will add an additional count in theindictment for perjury or false sworn declara-tionsY0

together in a single plan to extort money. Thus, A, B,C and D victims may each be paying $100 per monthto E, F, G and H officers, respectively. With only thevictims as witnesses, separate indictments must bereturned against each officer. However, if E will testifythat he shared his proceeds with F, G and H, who inturn shared their collections with him, then a singleindictment may be returned against all the policeofficers.

28 The constitutionality and legality of a rule whichauthorizes discharge of a public employee from officefor asserting his fifth amendment rights is discussedin notes 40-52 infra and accompanying text.

29 The prosecutor's statement to the grand jury thatthe uncorroborated testimony of a businessman thathe paid money to a police officer constitutes probablecause is enough to convince the grand jury that anindictment can be returned although no definite con-clusion is reached on the truthfulness of either witness.Because there is no requirement that the officer becalled to testify at all, this argument to the grand juryhas great persuasive force, especially where the pros-ecutor has been able to establish rapport with the jurymembers. This analysis has been corroborated by myexperience in working with a grand jury investigatingpolice corruption in Chicago where oftentimes thevictims never testified before the grand jury at all andthe jury instead heard an FBI agent report of thevictim's statement to him. In no such case was a policeofficer's sworn denial to the grand jury so convincingthat an indictment was not voted upon affirmatively.And in no case did the grand jury insist that the victimtestify in person. Generally, hearsay testimony aloneis sufficient to support the return of an indictment.United States v. Costello, 350 U.S. 359 (1956).

30 Where there is only one witness and no corrobora-tion, the false declaration statute must be used. Evenwhere more than one witness is available prosecutorsprefer to use the false declaration statute unless thecure provision presents problems. The validity ofjoining in one indictment against one defendant a countof perjury or false declarations with a substantiveextortion charge is governed by the provisions of Rule8(a) of the federal rules. That rule provides:

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An indictment containing both charges of per-jury or false sworn declarations and extortiongives the prosecutor several advantages, even whenthe factual basis for the different counts of theindictment is the same. First, there is the increasedpossibility in a close case for a compromise ver-dict-the opportunity for the jury to find the de-fendant guilty on only some counts. This is especi-ally important where, without the perjury or falsedeclaration charge, the indictment would haveonly one count. Second, there is the effect, how-ever minimal, of the indictment indicating to the

(a) Joinder of Offenses. Two or more offensesmay be charged in the same indictment or informa-tion in a separate count for each offense if theoffenses charged, whether felonies or misde-meanors or both, are of the same or similar char-acter or are based on the same act or transactionor on two or more acts or transactions connectedtogether or constituting parts of a common schemeor plan.

FED. R. Cmer. P. 8(a).The problem of joinder arises from the fact that the

perjury or false declaration offense is committed sub-sequent to and separate from the extortion, althoughboth charges depend on proof of the same elementalfact-whether or not the police officer took money.Joinder is further complicated where only one of manydefendants is charged in an indictment with eitherperjury or false declaration. This latter joinder problemssomewhat alleviated by the presence of a conspiracycharge or at least a charge that all of the defendantsacted together in the planning and execution of thesubstantive criminal act. Where only one defendantwas involved and where he was charged with bothextortion and false declaration, his conviction wasaffirmed. See United States v. Moore, 486 F.2d 1406(7th Cir. 1973) (memorandum opinion affirming theconviction where the trial court had overruled de-fendant's objections to joinder). Courts have generallyallowed joinder of false statement charges with theircounterpart substantive charges. See United States v.Roselli, 452 F.2d 879 (9th Cir. 1970), cerl. denied, 401U.S. 924 (1970) (holding that the joinder of chargesagainst defendants to cheat for profit in rigged ginrummy games with charges of false statements relatingto the profits from those games on their income taxreturns was permissible).

In a conspiracy case charging numerous substantivecounts, the joinder of perjury counts was also heldproper in United States v. Isaacs, 493 F.2d 1124 (7th Cir.1974) (Special Panel of Judges from another circuit).However, the seventh circuit recently reversed a casefor improper joinder of false declarations with extortionunder Rule 14 of the Federal Rules of Criminal Pro-cedure, holding that although joinder may be properuntil Rule 8(a) prejudice arises because the defendanthas the burden of overcoming an implicit presumptionthat he lied to the grand jury about the crime withwhich he is charged. United States v. Pacente, 490F.2d 661 (7th Cir. 1973). The government has petitionedfor a hearing en banw on the grounds that a differentpanel of the court had implicitly ruled the other wayin United States v. Moore, 486 F.2d 1406 (7th Cir.1973). The Pacente decision was also criticized inUnited States v. Isaacs, 493 F.2d 1124, 1160 (7th Cir.1974).

jury that at least one tribunal consisting of peoplelike themselves believed that the defendant wasnot a truthful witness. Third, the officer will beforced to testify at trial. Since the grand jurytestimony will be placed before the jury, the de-fendant cannot afford to remain silent at trial.Fourth, even with a charge to the jury which ineffect states that the defendant can be foundguilty of extortion only if the payment was not abribe, the jury may still return a verdict on theperjury or false declaration count, if it believesthat the defendant lied about receiving moneyfrom the victim. In other words, the defendantmay find himself convicted although the evidencedoes not support a finding that he violated theHobbs Act. Finally, if the defendant is chargedwith more than one count of extortion involvingwholly unrelated payments to him by differentindividuals, the judge will charge the jury that itmust consider the evidence on each count sep-arately. However, the jury may consider all theevidence on the perjury or false declaration countbecause the crime alleged is the denial that anymoney was received. Thus, the perjury or falsedeclaration charge allows the~jury to consider thetestimony of all witnesses together, although theymay not do so in connection with the separatecounts of extortion.

An equally important use of the federal falsetestimony statutes is the permissibility of indictingan officer for collecting money more than five yearsprior to the date of the indictment. These pay-ments would be beyond indictment under theHobbs Act because of the statute of limitations.A prosecutor with witnesses who have paid moneyto a police officer, for example in 1964, may callthe officer before the grand jury and ask him if heever asked for or received any money from anybusinessman in the course of his official duties. Ifthe officer testifies that he did not, he can be prose-cuted under the perjury or false declaration statutedespite the fact that, had he answered in the affirm-ative, he could not have been indicted at all.3'

THE INVESTIGATION AND INDICTMENT STAGE

When commencing an investigation of policecorruption or other official corruption that is be-lieved to be widespread in a community, a plannedprocedure of obtaining information and usableevidence is necessary. One way of proceeding thatis well suited to investigations of organized police

31 An indictment was obtained on this basis in UnitedStates v. Devitt, No. 73 CR 75 (N.D. Ill. 1973).

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corruption is first to use informers to obtain thenames of individuals involved (both payors andpayees), then to solicit the cooperation of thosewho paid the police, and finally, to select a fewkey police officers upon whom concentrated effortscan be made to elicit testimony against otherofficers of the same rank and superiors in the higherlevels of the police department.32 If each step ofthis procedure meets with positive results, the endproduct will be a conspiracy indictment againstparticipating officers in a payoff and shakedownscheme.

In considering the method of proceeding againstwidespread corruption, the prosecutor will prob-ably select one specific area of corruption becauseit is more likely to yield dividends quickly. Sincewitnesses are obviously needed to make any case,it is best to focus on the kind of corruption whichinvolves witnesses who will testify with little or nocompulsion. For example, in the investigation ofpolice corruption in Chicago, the Justice Depart-ment decided early that, although informant in-formation was replete with references to payoffsto police by gamblers, narcotics peddlers, mem-bers of organized crime, and professional burglarsand other criminals, the best hope for a meaningfulinvestigation was to examine payments to policeby persons and businesses licensed by the city tosell alcoholic beverages. Because the individualspaying money to police were vulnerable to policeenforcement of the liquor license laws,33 but did

2These key officers will generally be the "bagmen,"i.e. those who collect the money from the victims anddistribute all or a portion of the proceeds to fellowofficers, lawyers, politicians and higher ranking policeofficials.31In Chicago, the police department has the re-sponsibility of investigating applicants for liquorlicenses and investigating for any violation of the cityliquor license laws. Because it is possible for a liquorlicense to be suspended or completely revoked for awide variety of minor offenses such as the sale of liquorto minors, the tavern owner finds himself almost com-pletely at the mercy of the police. An arrest can leadto a suspension of the license even if no criminal con-viction is obtained. And, as a result of police powers,tavern owners are often subjected to quasi-legal tacticssuch as the constant checking of licenses and identifica-tions of patrons, all of which can effectively reduce thepopularity of a tavern. Finally, because there is such alarge host of trivial regulations with which the tavernowner must comply, the police can cause the ownertrouble almost at will. Among such violations are sellingliquor on credit, not providing an open view from thestreet into the entire tavern, not properly displaying aliquor license, staying open even a minute after theallowable closing time, and failing to immediately reportto police any disturbance in the tavern. Because viola-tion of any one of the above rules can cause trouble forthe tavern owner with the liquor license commission,

not engage in any type of general criminal activity,it was believed that they would be among theeasiest to convince to testify against the officerswhom they paid money.3 Moreover, the policewho took money from these individuals, especiallyif it was accomplished pursuant to an organizedscheme, were often the same officers involved incorruption with various criminal elements in thecommunity. Thus, if the investigation as designedwas a success, the federal government would have,in effect, forced into the open the problems of allpolice corruption.

Because the payment of money to the police bytavern owners results in a service to the owner,any crime committed by the officer in takingmoney may be characterized as "victimless." Inthis type of crime, the investigator initially mayencounter some difficulty in obtaining information.However, where an informant already has statedthat a certain individual has paid the police, theattitude of "we know you paid" conveyed to thewitness may be enough to obtain his cooperation.In any event, it is true that at first where theinvestigators are simply interviewing every tavernowner in a particular district, the majority willdeny ever having paid the police or having knowl-edge of any one who did.15 However, if a few, butsignificant number of tavern owners cooperate, asnowball effect may occur which will encourageothers to come forward with information. 6

At first it may also be difficult to obtain thecooperation of police officers, particularly thosewho have taken money. For this reason, the em-ployment of some type of legal compulsion is usu-ally necessary. Although the police officer who isdestined to become an accomplice witness may

he is usually more than happy to pay money or grantspecial discounts to the police to avoid any possibilityof trouble or harrassment.

14 This is not to say that tavern owners flock to testifyabout their payments to police, but it is true that,because they have relatively little to hide other thanthe payment of money itself, traditional methods ofinvestigative pressure judicially applied by the agentwill achieve the desired results. Although this articlefocuses on the payment of money to police by in-dividuals who have liquor licenses, its precepts applyto anyone paying money to a public official who doesnot want the official to countenance or overlook seriousand continuous criminal conduct but simply desiresfreedom from compliance with certain regulations.

2 In many police districts in Chicago and other largecities, a tavern owner who maintains that he does noteven know of anyone who has paid the police can beassumed to be lying or at best incredibly naive.

-1 For those who do not cooperate at the interviewstage, the grand jury and all of its powers are availableto the prosecutor.

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never be taken before the grand jury or givenimmunity, the threat of employing these devicesmay by necessary to force the officer to cooperate.pSimilarly, in attempting to obtain testimony fromlawyers who may have played a significant role ina coiruption scheme (for example, in passingmoney to the police in order to expedite the ap-proval of liquor licenses), legal compulsion orthreat of its use may also be required.

It is clear therefore that although much valuablespade work can be done through investigationalone, more formal means of building a case arenecessary. Federal prosecutors have been particu-larly adept at using the grand jury subpoena,immunity and local administrative regulations toelicit testimony and cooperation in an investi-gation.

One method used by federal prosecutors is tosubpoena a police officer before the grand juryeven though sufficient evidence for an indictmentalready has been uncovered. When a potentialdefendant is subpoenaed in the usual federal crim-inal investigation, the witness may either testifyor assert his fifth amendment privilege againstself incrimination.n However, in a jurisdictionwhere a local police rule or state law authorizesdismissal of an officer for refusing to testify beforeany investigative body which is seeking informa-

17 More than any other professional group in society,the police have a code of secrecy. A breach of this codebrings on the officer more approbation than the worstcompromise of his integrity in the performance of hisduties. Some police officers have suffered indictment,conviction, and stiff prison sentences for as little astaking a few dollars from one tavern owner (in onecase simply asking for money and never receiving it),knowing that cooperation would have enabled them toavoid jail altogether and possibly even indictment.But the code of secrecy is often so strong that nothingwill make an officer talk about his colleagues' illegalactivities. Eventually, however, the code can be broken,but it is a long process and requires constant concen-trated effort by the investigators and prosecutors.

38 Although the law is far from clear, it has been thegeneral practice in federal grand jury proceedings toinform a witness, who may be subsequently indicted,that he is a potential defendant and to inform him ofhis constitutional rights as a police officer would underMiranda v. Arizona 384 U.S. 436 (1966). Thus, thewarnings given would consist of the following:

(1) You are a potential defendant in the investiga-tion.

(2) You have a right to remain silent. Anythingyou say may be used against you in a later courtproceeding.

(3) You may have an attorney to advise you. Al-though he may not come into the grand juryroom, you may leave to consult with him priorto answering a question.

(4) If you cannot afford an attorney, one will beappointed for you prior to any questioning.

tion about his official duties, severe consequencesattend the exercise of an option not to testify. 9

Naturally, the questions which face federal andlocal officials under these circumstances is whethersuch firings and suspensions are constitutionallypermissible and what appropriate means are avail-able for local authorities to learn if a police officerdid in fact refuse to answer questions during thesupposedly secret grand jury proceeding.

The United States Supreme Court has discussedthe question of whether a public official may bedischarged for refusing to testify in a criminalinvestigation, but has yet to resolve several criticalissues. In Garrity v. New Jersey10 police officers inNew Jersey were brought before an administrativetribunal supervised by the State Attorney Generaland asked questions about the fixing of traffictickets. Each officer was warned that anything hemight say could be used against him and that ifhe refused to testify he would be subject to re-moval from office under a New Jersey statute. Theofficers all testified and some of the answers wereused against them in a subsequent criminal prose-cution. In a five to four decision, the United StatesSupreme Court reversed their convictions and heldthat "protection of the individual under the Four-teenth Amendment against coerced confessionsprohibits use in subsequent criminal proceedings ofconfessions obtained under threat of removal fromoffice, and that it extends to all, whether they arepolicemen or other members of our body politic." aIn Spevak v. Klein,42 the Supreme Court held thata lawyer could not be disbarred for asserting theprivilege against self-incrimination. Neither ofthese cases decided whether a police officer may bedischarged from employment because he refuses totestify. Spevak did not deal with a public official,and in a footnote Justice Douglas stated that"whether a policeman who invokes the privilegewhere his conduct as a police officer is questionedin disciplinary proceedings, may be discharged forrefusing to testify is a question we do not reach." 13

Thus, despite the apparently broad sweep of Spetvakand Garrity and Justice Douglas' insistence that"we find no room in the privilege against self-in-

19 For example, in Chicago, eight of the first ninepolice officers who were called before the grand jurywere suspended by the police department for assertingtheir fifth amendment rights. Through the ensuingmonths it became rare for an officer to "take the fifth."

40 385 U.S. 493 (1967).41 Id. at 500.42 385 U.S. 511 (1967).43 Id. at 516, n.3.

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crimination for classification of people so as todeny it to some and extend it to others," 44 neithercase reached the question of the discharge of publicemployees.

Subsequent Supreme Court decisions have donelittle to clarify the problem. In Gardner v. Brod-erick,41 a New York City policeman was sub-poenaed before a grand jury where he was advisedof his constitutional rights and asked to sign awaiver of immunity. The constitution of New Yorkand the Charter of New York City required awaiver of immunity if the public official wished toretain his position. The officer refused to sign thewaiver of immunity and was discharged. CitingSpevak and Garrity, the Supreme Court held thatthe officer could not be discharged for refusing towaive his immunity. But the Court stopped shortof holding that an officer could not be fired forrefusing to answer questions about his officialduties:

He was discharged from office, not for failure toanswer relevant questions about his official duties,but for refusal to waive a constitutional right. Hewas dismissed for failure to relinquish the protec-tions of the privilege against self-incrimination.The constitution of New York State and the CityCharter both expressly provided that his failureto do so, as well as his failure to testify, would re-sult in dismissal from his job. He was dismissedsolely for his refusal to waive the immunity towhich he is entitled if he is required to testify de-spite his constitutional privilege. 4'

In other words, the Court simply held that, inas-much as Garrity would prevent the use of anycompelled testimony against the officer, an at-tempt by the state to force the officer to sign adocument waiving that protection was improper.The Court did not hold that the officer can escapedischarge for asserting the privilege against self-incrimination. -

44 Id. at 516.4 392 U.S. 273 (1968).6 Id. at 278.47 justice Harlan concurred in the result although he

had vigorously dissented in Garrity and Spevak. But,because he read the Court's opinion in Gardner asleaving the way open for the discharge of an officerrefusing to testify, he considered it necessary in viewof the decisions in Garrity and Spevak to concur. Thus,he said:

I do so [concur] with a good deal less reluctance thanwould otherwise have been the case because, despitethe distinctions which are sought to be drawn be-tween these two cases, on the one hand and Spevak

In Lefkowitz v. Turley,5 the Supreme Courtconsidered the constitutionality of a New Yorkstatute which provided that if a public contractorrefused to waive immunity or to testify concern-ing his state contracts, his existing contracts couldbe cancelled and he would be disqualified fromdoing business with the state for five years. InLefkowitz several such contractors were disqualifiedfor refusing to waive immunity. In holding thestatute unconstitutional, the Supreme Court car-ried forward its approach in Gardner and statedthat "... given adequate immunity, the state mayplainly insist that employees either answer ques-tions under oath about the performance of theirjob or suffer the loss of employment." 4 9 The Courtheld the same standard applied to public contrac-tors and that adequate immunity would consist ofa prohibition of the use of the compelled testimonyor its fruits.

Since there is no authoritative holding by theSupreme Court on exactly when and how publicofficials may be discharged for refusing to answerquestions concerning their official duties, the lowercourts have reacted in varying ways when con-fronted with the constitutionality of local police

and Garrity, on the other, I find in these opinions aprocedural formula whereby, for example, publicofficials may now be discharged and lawyers dis-ciplined for refusing to divulge to appropriateauthority information pertinent to the faithfulperformance of their offices. I add only that this is awelcome breakthrough in what Spevak and Garritymight otherwise have been thought to portent.

Id. at 285.That the Supreme Court was not deciding the right todischarge a public employee for refusing to testifywas clearly stated in Gardner's companion case,. Uni-formed Sanitation Men Association v. Commissioner,392 U.S. 280 (1968). justice Fortas, speaking for theCourt, stated:

[If] New York had demanded that petitioners answerquestions specifically, directly, and narrowly relatingto the performance of their official duties on pain ofdismissal from public employment without requiringrelinquishment of the benefits of the constitutionalprivilege, and if they had refused to do so, this casewould be entirely different.

Id. at 284.After the decision in Uniformed, the Second Circuit

again had occasion to deal with the issue after furtherdisciplinary proceedings by the City of New York hadoccurred. Uniformed Sanitation Men Association, Inc.v. Commissioner, 426 F.2d 619 (2d Cir. 1970). Thecourt held that "use immunity" suffices for the dis-charge of public employees for refusing to testify andnoted that discharge may occur so long as the questionspropounded relate to the performance of his duties andthe official is advised of his options and the consequencesof his choice.48 414 U.S. 70 (1973).19 Id. at 84.

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rules.W0 For example, in Confederation of Police v.Conlisk5t the Seventh Circuit held that severalofficers who had appeared before a federal grandjury and subsequently refused to tell the investi-gative division of the police department whetherthey had answered the questions propounded tothem by the federal prosecutor could not be dis-charged. The court denied the right to dischargeon the narrow ground that the officers were notbeing questioned by their superiors about theirofficial duties, although the city was attempting tofind out if they had refused to testify about theirduties before the grand jury. The effect of thisdecision was to reinstate the officers although underan extension of the language in the United StatesSupreme Court cases they could have been dis-charged had they been asked by the police investi-gators the same questions about their duties thatthe federal prosecutor had asked them and thenagain refused to answer. The court also concludedthat it was improper to fire the officers for simplyinvoking the fifth amendment, ignoring the factthat it was the questions which were asked theofficers in the federal grand jury that resulted intheir discharge, not simply their invoking the fifthamendment. Because the police department couldhave discovered what had been asked at the fed-eral grand jury proceeding in any case,52 the ques-tions concerning whether the officers had invokedthe fifth amendment were unnecessary. In anyevent, the court of appeals apparently misread the

60 See, e.g., Kalidnes v. United States, 473 F.2d 1391(Ct. Cl. 1973) and Confederation of Police v. Conlisk,489 F.2d 891 (7th Cir. 1973), where both courts heldthat the discharge of an official for refusing to answerquestions was improper because he was not informedthat he was subject to discharge if he asserted his fifthamendment rights or that, if he answered the ques-tions, his testimony could not be used against him.

The logic of a requirement that a witness be toldthat his testimony cannot be used against him ap-parently grew out of the infirm waiver of immunityrequirement condemned in Gardner and Uniformed(and again recently condemned in Tvrley). Still, therationale behind the requirement is suspect. Whateverthe witness is advised, his testimony cannot be usedagainst him in a subsequent criminal proceeding, butthere does not seem at present any prohbition againstusing that testimony to effect his discharge from publicoffice. In any event, the requirement of telling a witnesspublic employee that he has "use immunity" if hetestifies has not spread to other courts. Such a require-ment, if given full effect, would immeasurably compli-cate the proceedings and would add little in the way ofprotection for the witness because, whether or not heis told, the compelled testimony cannot be used againsthim under Garrity.

51 489 F.2d 891 (7th Cir. 1973).6 See note 58 infra.

implications of Garrity and subsequent cases byplacing undue emphasis on the inquiry by thelocal officials after the officers had already refusedto testify before the federal grand jury.0

51 However, many other courts have held that apublic official may be discharged for refusing to answerquestions and take a lie detector test concerning theconduct of his official duties. Although courts recognizedthat the statements extracted from the officer duringthe lie detector test cannot be used against him in anysubsequent criminal proceeding, courts have generallybeen able to find their way through the gaps left bySpevak, Garrity, Gardner, Uniformed Sanitation andTurley to the conclusion that no constitutional impedi-ments arise which would prevent discharge of thepolice officer. See, e. g., Fischera v. State PersonnelBoard, 217 Cal. App. 2d 613, 32 Cal. Rptr. 159 (1963);Coursey v. Board of Fire and Police Commissioners,90 Ill. App. 2d 31, 254 N.E.2d 339 (1967); Dieck v.Department of Police, 266 So. 2d 500 (La. App. 1972);Clayton v. New Orleans Police Department, 236 So. 2d548 (La.App. 1970); Roux v. New Orleans PoliceDepartment, 223 So. 2d 905 (La. Ct. App.), aft'd, 254La. 815, 227 So. 2d 148, cert. denied, 397 U.S. 1008(1969); Seattle Police Officers' Guild v. City of Seattle,80 Wash.2d 307, 494 P.2d 485 (1972). Bat see Molinov. Board of Public Safety, 154 Conn. 368, 225 A.2d805 (1966). Devito v. Civil Service Commission, 404Pa. 354 172 A.2d 161 (1961).

In addition the majority view among state courtswhich have considered the question of discharge of apublic official for refusal to testify in a grand jury orother proceeding is that discharge is constitutionallypermissible. For example, in Seattle Police Officers'Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d485 (1972), the police chief of Seattle had initiated aninternal investigation which resulted in the ordering ofvarious officers to respond to questions concerning theirofficial conduct or suffer dismissal. This internal in-vestigation was in response to evidence that severalpolice officers had been involved in the taking of pay-offs. No officer was compelled to waive immunity andall of the questions asked concerned only the officers'performance of their duties. The Police Officers' Guildsought to enjoin the investigation and the trial courtgranted the injunction. On appeal the WashingtonSupreme Court reversed, holding that no iniunctioncould be granted which would prevent the police chiefand the city of Seattle from dismissing or otherwisedisciplining an officer for asserting his fifth amendmentrights to questions directed at the performance of hisofficial duties. See also Clifford v. Shoultz, 413 F.2d 868(9th Cir. 1969); Bowes v. Commission, 330 F. Supp.262 (S.D.N.Y. 1969); Kammerer v. Board of Fire andPolice Commissioners of the Village of Lombard, 44Ill. 2d 500, 256 N.E.2d 12 (1970); Silverio v. MunicipalCourt, 355 Mass. 623, 247 N.E.2d 379, cert. denied, 396U.S. 878 (1969); State v. Falco, 60 N.J. 570, 292 A.2d13 (1972). Finally, if an officer testifies falsely, he maybe prosecuted for perjury, although the testimony mayhave been unconstitutionally compelled. See 18 U.S.C.§ 2514 (1970); see also Glickstein v. United States,222 U.S. 139 (1911); United States v. Winter, 348F.2d 204 (2d Cir. 1965); Kronick v. United States, 343F.2d 436 (9th Cir. 1965); United States v. Parker, 244F.2d 943 (7th Cir. 1957); United States v. Provenzano,326 F. Supp. 1066 (E.D. Wis. 1971); United States v.Kelly, 254 F. Supp. 57 (S.D.N.Y. 1966); United States

HERBERT BEIGEL

While many of the issues remain unsettled, itdoes appear that a carefully worded warning topublic officials followed by questions relating totheir official duties can be the basis for a subse-quent discharge if the officials refuse to answerthe questions. As long as the official can be dis-charged for refusing to answer, the prosecutor hassignificant leverage over the official.

In light of the significance of what may occurat the federal grand jury proceeding, some mech-anism had to be devised to allow disclosure of theofficer's action before the grand jury, particularlyto those local officials who have the power to effectthe discharges. While federal grand jury proceed-ings generally remain secret, Rule 6(e) of theFederal Rules of Criminal Procedure specificallyprovides that disclosure will be allowed "prelim-inary to or in connection with a judicial proceed-ing."" The use of this rule to uncover what oc-curred at the grand jury proceedings can be illus-trated in the following way. In an investigation,subpeonas which are issued by the grand jury canbe delivered to the police department, which willnormally issue an order requiring the designatedofficers to appear before the grand jury. 5 This

ex rel. Rohrlich v. Wallach, 251 F. Supp. 1009, 1011n.1 (S.D.N.Y. 1966); cf. Robinson v. United States,401 F.2d 248 (9th Cir. 1968). But see Goldberg v.United States, 472 F.2d 513, 516 n.4 (2d Cir. 1973).

4The rule provides:(e) Secrecy of Proceedings and Disclosure. Dis-

closure of matters occurring before the grand juryother than its deliberations and the vote of anyjuror may be made to the attorneys for the govern-ment for use in the performance of their duties.Otherwise a juror, attorney, interpreter, stenog-rapher, operator of a recording device, or any typistwho transcribes recorded testimony may dis-close matters occurring before the grand juryonly when so directed by the court preliminarilyto or in connection with a judicial proceeding orwhen permitted by the court at the request of thedefendant upon a showing that grounds may existfor a motion to dismiss the indictment because ofmatters occurring before the grand jury. Noobligation of secrecy may be imposed upon anyperson except in accordance with this rule. Thecourt may direct that an indictment shall be keptsecret until the defendant is in custody or hasgiven bail, and in that event the clerk shall sealthe indictment and no person shall disclose thefinding of the indictment except when necessaryfor the issuance and execution of a warrant orsummons.

FED. R. CRaM. P. 6(e)." Although this technically means a subpoena is not

properly served on the police officer until his appearancebefore the grand jury (thus removing the possibilityfor court sanctions for non-appearance), it avoids thenecessity of serving subpoenas on officers whose homeaddresses are unknown and who, while on duty, aredifficult to locate quickly.

information will also be turned over to the city'scorporation counsel. After each appearance beforethe grand jury, the corporation counsel can inter-view the officers and ask them if they answered allthe questions propounded by the grand jurythrough the federal prosecutor. Once this is ac-complished, the corporate counsel can then file amotion with the federal district court seeking dis-closure of whether the officer had in fact answeredall the questions. At the hearing on the motion todisclose pursuant to court order, the governmentwill read into the record any questions which theofficer had refused to answer. 56 If the officer hadrefused to provide answers, the police departmentwill then draw charges against the officer for failureto cooperate with the grand jury." In designingthis procedure, advantage is taken of the factthat once it becomes known to local officials thatan officer had refused to answer questions beforethe grand jury, there could be a subsequent ad-ministrative hearing and a later appeal to thecourts by the officer, which would satisfy the "pre-liminary to or in connection with a judicial pro-ceeding" requirement under the federal rule.

Numerous cases support the disclosure of grandjury testimony in this way. For example, in In reGrand Jury Transcripts,"s the Chief of Police ofColumbus, Ohio applied for an order releasing atranscript of a federal grand jury proceeding foruse in an administrative hearing in connection with

56 The government needed an order entered by theChief judge to protect it against any possible chargethat it was conniving with the local authorities to oustpolice officers from their jobs and to subvert grandjury secrecy.

In Chicago the question of disclosure first arose inopen court. The first group of officers to be subpoenaedwere all represented by the same attorney who, uponthe completion of their appearances promptly filed asuit in federal court to enjoin the police departmentfrom taking any action against the officers for refusingto answer questions. The federal government was nota party to this action but under court order read intothe record in a public proceeding the questions theofficers had refused to answer. The court then dismissedthe suit by the officers holding that an officer could befired for refusing to answer questions relating to hisofficial duties. But see Confederation of Police v.Conlisk, 489 F.2d 891 (7th Cir. 1973).

7See Confederation of Police v. Conlisk, 489 F.2d891 (7th Cir. 1973). The charge would have to be forthe officer's failure to answer questions about his officialduties in the grand jury not for failure to answer theinquiry by the corporation counsel. See notes 40-52sup a.

"3 309 F. Supp. 1050 (S.D. Ohio 1970). See also Doev. Rosenberry, 255 F.2d 118 (2d Cir. 1958); In reBullock, 103 F. Supp. 639 (D.D.C. 1952). But seeUnited States v. Crolich, 101 F. Supp. 782 (D. Ala.1952).

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disciplinary charges against various police officers.The court held that the federal rule was met be-cause the administrative hearing might result inthe suspension of the officer which would then besubject to appeal.

In the event that an officer takes the risk ofbeing fired and invokes the fifth amendment atthe grand jury proceeding, the prosecutor cancompel testimony through the use of immunity inorder to uncover certain evidence vital to the in-vestigation and prosecution of the case.59 Under

19The statutory provisions regarding transactionalimmunity are found in 18 U.S.C. § 2514 (1970) andstate that, once given such immunity, a witness can-not be prosecuted for any offense about which hetestified:

Whenever in the judgment of a United Statesattorney the testimony of any witness, or the pro-duction of books, papers, or other evidence by anywitness, in any case or proceeding before any grandjury or court of the United States involving anyviolation of this chapter or any of the offensesenumerated in section 2516, or any conspiracyto violate this chapter or any of the offenses enu-merated in section 2516 is necessary to the publicinterest, such United States attorney, upon theapproval of the Attorney General, shall make ap-plication to the court that the witness shall beinstructed to testify or produce evidence subjectto the provisions of this section, and upon orderof the court such witness shall not be excused fromtestifying or from producing books, papers, orother evidence on the ground that the testimonyor evidence required of him may tend to incriminatehim or subject him to a penalty or forfeiture. Nosuch witness shall be prosecuted or subjected toany penalty or forfeiture for or on account of anytransaction, matter or thing concerning which heis compelled, after having claimed his privilegeagainst self-incrimination, to testify or produceevidence, nor shall testimony so compelled be usedas evidence in any criminal proceeding (except ina proceeding described in the next sentence) againsthim in any court. No witness shall be exemptunder this section from prosecution for perjury orcontempt committed while giving testimony orproducing evidence under compulsion as providedin this section.

The statutory provisions regarding use immunity arefound in 18 U.S.C. § 6002 (1970). Use immunity differsfrom transactional immunity in that an immunizedfederal witness may still be prosecuted if his testimonyor any of its fruits are not used against him. Thus,Section 6002 provides:

Whenever a witness refused, on the basis of hisprivilege against self-incrimination, to testify orprovide other information in a proceeding before orancillary to-

(1) a court or grand jury of the United States,(2) an agency of the United States, or(3) either House of Congress, a joint committee

of the two Houses, or a committee oz a subcom-mittee of either House,and the person presiding over the proceeding com-municates to the witness an order issued underthis part, the witness may not refuse to complywith the order on the basis of his privilege against

federal law, the government has the power to grantuse or transactional immunity in support of itsinvestigation of local corruption. According toseveral United States Supreme Court cases, thedecision by federal prosecutors to give certainwitnesses immunity may have significant effectson the ability of state or local officials to prosecutethe offenders under their own laws. In Murphy v.Waterfront Commissin 60 the Court held that evi-dence or its fruits elicited by state or federal offi-cials under a grant of immunity could not be usedby either government in any subsequent prosecu-tion." As a result, when federal officials decide togrant use or transactional immunity to tavernowners or policemen during the course of theirprosecutions, they may be effectively eliminatingany effort by state or local officials to disciplinethose given immunity. The problem becomes lessserious when there is cooperation between stateand federal officials, or when local officials refuseto investigate or prosecute their own officials. Thus,unless the federal investigation is carried forwardwith the purpose of maximizing the benefits in the

self-incrimination; but no testimony or other in-formation compelled under the order (or any in-formation directly or indirectly derived from suchtestimony or other information) may be usedagainst the witness in any criminal case, except aprosecution for perjury, giving false statement, orotherwise failing to comply with the order.60 378 U.S. 52 (1964).6' See also Kastigar v. United States, 406 U.S. 441

(1971); Zicarelli v. New Jersey Investigation Com-mission, 406 U.S. 472 (1971).

The Justice Department has instructed its attorneysin a policy statement not to issue transactional im-munity. This policy was put into effect because theJustice Department, in recommending to Congress thepassage of the use immunity statute, had representedthat one of the benefits of use immunity would be theeasing of friction between federal and state law en-forcement agencies, since use immunity would stillallow the state to prosecute the witness. This, theDepartment argued, was important because state lawenforcement officials often resented the subversion oftheir investigations by the granting of transactionalimmunity by the federal government which precludedany prosecution, federal or state.

In addition, the justice Department has a policywhich precludes, except in unusual cases, the prosecu-tion of a witness who has been given use immunity.This policy was put into effect because of the Depart-ment's fear that it would be criticized for indicting awitness given use immunity. The net effect is that awitness given use immunity need not fear federalprosecution. There are, however, exceptions. SeeUnited States v. DeMet, 486 F.2d 816 (7th Cir. 1973)(where an officer who had been previously indicted andconvicted was granted use immunity, was subsequentlyunresponsive in his grand jury testimony, and wasindicted again). See also United States v. Holder, No.73 CR 634 (N.D.I11. 1973). In both of these cases thedefendants ultimately entered guilty pleas.

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particular community effected by local corruption,the granting of immunity may serve the purposeof singling out a key official in the police depart-ment at the expense of allowing other officers toescape any type of criminal prosecution.

In any event, in police corruption cases individ-uals who are in the lower echelons of the depart-ment or who may be the victims of the corruptionmay be immunized to obtain evidence againsthigher ranking members. This procedure can serveas an effective way to build a case beyond thetestimony of the victim, who may only have evi-dence against the officer who collected the money.

Although immunity can be an effective tool, theprosecutor may prefer to use an accomplice wit-ness who has already pleaded guilty because animmunized witness may suffer from tarnishedcredibility at trial. For the same reason, testifyingvictims are usually not granted immunity.12 If thevictim refuses to provide any information initially,the threat of immunity may enable the prosecutorto obtain cooperation from a witness prior to anygrand jury proceeding 3

To aid federal prosecutors in conducting investi-gations of organized crime, Congress has alsoauthorized the empaneling of a special grand juryfor an initial term of eighteen months with exten-sion possibilities for another eighteen months.0Before the enactment of this statute, a prosecutorwho wished to have an extended investigation bya grand jury was compelled to select one of thethirty day juries and extend its term specially.Although this could easily be accomplished, grand

12 Even if granted use immunity the witness couldstill be subjected to state prosecution. The one impedi-ment to state prosecution is the appearance of such aprosecution as being an attempt to subvert the federalinvestigation. As a result, in the federal investigationof police corruption in Chicago, no tavern owner hasbeen prosecuted by the state for bribery.

0 The fact that a police officer may be dischargedfor refusing to testify reduces the instances in whichimmunity can be employed. Because a witness mustfirst refuse to answer questions before he can be givenimmunity, the witness who testifies fully to avoid beingdischarged cannot receive immunity. Thus, in an in-vestigation of an organized scheme of payments theofficers who may escape indictment and become govern-ment accomplice witnesses are those who preferred tobe discharged rather than indicted and asserted theirfifth amendment rights when they appeared before thegrand jury. See United States v. Braasch, No. 72 CR979 (N.D.IUl. 1973) (where several government wit-nesses were in this category and where many of the de-fendants may possibly have avoided indictment if theyhad refused to testify and negotiated with the prosecu-tion for immunity).

18 U.S.C. § 3331 (1970), enacted as part of theOrganized Crime and Control Act of 1970.

jurors who had originally assumed that they wouldonly be required to serve for one month would bevery upset at the increased length of service,thereby pressuring the prosecutor to bring theinvestigation to an end. In addition to the in-creased length of term of the special grand jury,several other benefits inure to the prosecutor in-vestigating public corruption. First, if a witnessrefuses to testify pursuant to a grant of immunity,he may be held in contempt and incarcerated"either until he agrees to testify or until the termof the grand jury expires, whichever is shorter."This may place greater burdens on the witnesswho refuses to testify, and force him to reviewcarefully his decision. Second, the prosecutor canestablish rapport with the grand jurors who knowthat they will be sitting for a substantial period oftime. This will give the grand jurors a feeling ofidentification with the purposes of the investiga-tion. Third, the special grand jury may convey anaura of importance to a witness appearing beforeit, especially where the witness is unsophisticatedand has not retained counsel.6 Finally, the specialgrand jury presents the possibility that a reportcan be written relating in detail the informationgathered by the grand jury which an indictmentand trial could not disclose."

TnE ROLE OF THE PROSECUTOR

The role of the federal prosecutor in an investi-gation of official corruption differs in both degreeand kind from that which he plays in a case in-volving the more traditional types of violations ofthe federal criminal code. For example, where abank robbery has occurred, the assistant UnitedStates Attorney in charge of the case need do littleelse than wait for an investigative agent to presenta case report to him. He can then file a complaint

The witness will go to county jail when there areno adequate federal lock-up failities to house the witnessfor an extended period of time. Id.

66 Id.67 If a witness testifies before the grand jury, the

prosecution at trial will be compelled to disclose to thedefendants his testimony before the grand jury priorto any cross examination. 18 U.S.C. § 3500 (1970).Obviously, the chances that the defense will be able toimpeach the witness on the basis of prior inconsistentstatements are increased. Thus, prosecutors try to avoidhaving a cooperative witness testify before a grandjury if at all possible.

18 U.S.C. § 3333 (1970). Because of possible con-stitutional problems with naming unindicted in-dividuals in a report, and the possibility of the prosecu-tion being attacked for using the grand jury as a weaponof libel and character assassination, prosecutors havenot used this provision.

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or place the agent before the grand jury to sum-marize the evidence which will secure the indict-ment. On the other hand, the prosecutor who ischarged with overseeing an extensive investigationof local corruption in a particular area mustactively participate in all phases of the investiga-tion. He must guide the operations of the investi-gative agents on almost a daily basis.69 He mustdecide when to bring any evidence before a grandjury and in what way that evidence should bepresented.70 He must make judgments concerningthe immunity of witnesses, the scope and extentof the investigation, and finally whether he tooshould act as an investigator. Because of the scopeof his activities, the federal prosecutor, even onewith little experience, possesses wide powers whichcan affect the narrow outcome of the investiga-

69 The Federal Bureau of Investigation has tradi-tionally operated as an intelligence gathering organiza-tion and a coordinator of various local police depart-ments where crimes are of a multi-jurisdictional nature.However, as Congress has increased the scope of thefederal criminal code, so too have the duties and powersof the FBI grown. Even with this development, theFBI trains its agents and feels most comfortable withinvestigations that require the solution of crimes bythe correlation of evidence gathered by local law en-forcement officials, or by the analysis of physical andobjective evidence. In an investigation which requiresa significant expenditure of man power over a longperiod of time with the same agents involved to assurecontinuity and the unearthing of evidence of eventsfour or five years in the past which can only be re-constructed through the hazy recollections of reluctantwitnesses and for which informants can provide littlehelp, the FBI often finds itself in a difficult position.And, if such an investigation is attended by politicalcontroversy, the FBI has been known to put up a solidwall of resistance to participating in the investigationin any meaningful way. See generally Navasky, Kmq-NErY Jusrics (1971). An investigation of police cor-ruption involves all of the above difficulties and thusrequires an aggressive prosecutor who is willing toforfeit much of his activity as a lawyer in favor ofbeing a politician and a supervisory investigator.

70 Often a grand jury will not be convened or evi-dence or testimony presented until a solid factual baseis laid and the community is aware that an investiga-tion is being seriously conducted. In the case of theinvestigation of police corruption which is manifestedby the collection of money from businessmen, thetechnique of conducting a large number of interviewson the street both avoids undue expenditure of grandjury time and alerts the community in a very directway to the intensity of federal pressure. A prosecutor'sdecision to conduct such an investigation by using thegrand jury as a forum for interrogation can lead tocounterproductive results, such as (1) too muchpublicity before any substantial amount of evidence isobtained and (2) the obtaining of lawyers by witnesseswhich will often increase the incidence of asserting thefifth amendment and reduce the possibility of the in-vestigative agents subtly applying pressure in in-formal interrogation.

tion, alter the relationship between federal andlocal officials, and materially affect public opinion.

In the investigation of police corruption, oftenit is difficult to motivate the investigative agencyto commit itself wholeheartedly to the pursuit offellow law enforcement officers. This problem maybe especially acute when the Federal Bureau ofInvestigation is involved. Because the FBI hasgenerally concentrated on coordinating the activ-ities of various local law enforcement agencies andbecause the FBI, in many instances, relies on in-formation and evidence developed by local officials,fairly close and cordial ties between agents andpolice develop2' Agents who are assigned the dutyof conducting an intensive investigation of thepolice may find the job distasteful, and must bewilling to suffer a considerable amount of dis-approval from fellow agents. In a long and drawnout investigation with unpredictable results, thissituation can lead to a loss of morale and a certaindegree of apathy in the carrying out of the agent'sduties. Occasionally, overt resistance surfacesY2

To avoid these difficulties a careful selection ofagents to participate in the investigation of policecorruption is necessary. However, because of theFBI's bureaucratic reluctance to be controlled bythe Justice Department, the actual selection ofthese agents is often beyond the control of theprosecutor. The agent, expected to be responsiveto two masters, is himself unsure whether heshould be loyal to his own superiors or to theprosecutor who may see the proper method ofconducting the investigation differentlyY

71 This developing relationship that can occur is oneof the reasons that agents are often assigned to dutyin cities where they have no familial or friendly ties.See note 69 supra.

7,In one case reported to this author, an FBI agentwho investigated a civil rights complaint that resultedin an indictment of a police officer refused to sit at theprosecutor's table during the trial for fear that he wouldbe criticized by his fellow agents and suffer the enmityof other police officers with whom he had developedcordial relationships.

73 The FBI requires that a report of the interviewbe prepared each time an agent speaks to a witness.Because all of these reports are producible at trial foruse by the defense under the Jenks Act (18 U.S.C. §3500 (1970)), the prosecutor prefers that the FBI agentconduct as many interviews as necessary to obtain allof the witness' recollections but to reduce all of thesessions to only one written report. The existence ofnumerous reports increases the chances for impeach-ment of the witness by raising the possibility that therewill be inconsistencies between the reports and thetestimony. In order to have one report prepared foreach witness, the prosecutor is forced to solicit theactive cooperation of the agent involved in violating

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The prosecutor who needs agents who can de-vote full time and energy to a long investigationencounters difficulty because of the workload ofagents. Finally, a prosecutor, who requests a largenumber of agents to work on an investigation thatmight not produce an indictment for a year ormore, often meets with stiff resistance by those incharge of the investigative agency. 4

CONFLICTS wiTH LOCAL AUTHORITIES

The investigation by the federal government ofpolice corruption often has as a by-product veiled,even open, hostility between various governmentalagencies. In more general terms, the federal in-vestigation and prosecution of crimes which are inviolation of both federal and state laws can easilylead to resentment by local officials of the intrusionof the federal government into what they conceiveas their private and exclusive domain. Whateverthe reasons for such resentment,75 the conflictgenerated can have far reaching consequences forthe investigation.

Because any investigation of police corruptionusually involves the testimony of one who haspaid money to police, that individual is often tech-nically susceptible to prosecution under statebribery laws. Of course, where it is clear that thepolice forced the payment by an explicit threat, itis highly unlikely that any action would or couldbe taken against the victim. But in the area of theexpanding coverage of the Hobbs Act, where apolice officer may be prosecuted for receivingmoney that closely approaches a bribe undertraditional views, the victim is more vulnerable.This situation is exacerbated if the victim is a

the FBI regulation. Most agents do not want to runthis risk.

7 4In a single three month period of the investigationin Chicago during 1972, this author had eight meetingsof an hour or more to discuss manpower requirementsfor the investigation, wrote three detailed memorandato the justice Department in Washington explainingthe problems of dealing with the FBI, and conductedinitial interviews of witnesses that could have beeneasily accomplished by agents had they been madeavailable. It was not unusual to wait from six to eightweeks for a report after the formal interview of a witnesshad occurred.

71 The reasons may include (1) fear of the localofficialdom that their misdeeds may be discovered andbecome the subject of investigation and prosecution,(2) fear that however clean their hands may be, theirpower and position may be damaged, (3) concern thatthe federal government will go still further and lookinto every phase of state and city government, and (4)a feeling of nonparticipation in an interesting andchallenging effort for which they will get no credit.

businessman licensed by the state or city to sellalcoholic beverages. Because one's license can inmany jurisdictions be suspended or revoked with-out conviction for a crime, the witness cannot befully protected from state action, even if he isgranted immunity." Of course, the fact that anyaction against the witness by local officials couldwell be considered purely retributive and obstruc-tionist may deter harassment of those holdingliquor licenses.

Conflict between the federal and local investi-gative officials can also arise during the time wheninformation is collected. In the interviewing ofwitnesses, the victim who has paid an officer onlyonce may not be able to provide the officer's name.A material aid in identifying the suspected officeris the availability of photographs, police incidentreports, assignment sheets, and supervisors' logs.Although this information could possibly be ob-tained by subpoena, it is obviously more efficientand desirable if those responsible for keeping thesedocuments and records agree to make this informa-tion accessible to the investigators, as needed, onan "ask for" basis27 Although none of thesepoints of conflict can entirely stop the progress ofa well coordinated federal investigation, severedelays can result, and witnesses may be discour-aged from testifying.

THE TRIAL OF A POLICE CORRUPTION CASE

The prosecution of a police corruption casegenerally assumes one of two forms. The simplestprosecution is against one police officer for extort-ing money from one or more persons where onlythe victim's testimony implicates the defendant. 78

The more sophisticated case involves as witnessesnot only those who paid the police but also one ormore police accomplices who are willing to testify

76 See notes 60-62 supra.7 In the investigation of police corruption in Chicago,

this arrangement was made with the Chicago PoliceDepartment, although the federal investigation wassometimes compromised by leaks from the police de-partment. In one instance an officer was called beforea grand jury to be questioned about a single incidentthat had occurred three years earlier and a report ofthat incident had been requested from the police de-partment. When the officer testified before the grandjury, he was well prepared and it was apparent that heknew that the particular incident in question was goingto be the focus of the interrogation. The origin of theleak was never learned.

7 Different individuals who pay the same officermoney in wholly unrelated incidents may be the sub-ject of a single indictment with a separate count con-cerning each payment.

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against fellow officers.79 In the first situation, thestrength of the prosecution rests on the credibilityof the victim. There is no physical evidence, andthere are often weaknesses in the identification ofthe officer involved. Yet, even where there is onlyone victim who can testify that he gave money tothe defendant, the chances for conviction are good.The reason for this lies in the inherent credibilityof a witness who has no motive to unjustly accusethe defendant. For example, a tavern owner maytestify that an officer apprehended him for sale ofliquor to a minor and then demanded money inexchange for not proceeding with the arrest."' Nopolice report was written by the officer and thusno record exists that any part of the incident oc-curred. The officer is free to deny ever being at thetavem and then hope that, if accused, the identifi-cation testimony of the victim will be weak. More-over, the tavern owner has been previously citedon numerous occasions for violations of the liquorlicense laws. The defendant, on the other hand,has a good record and appears comfortable andself-assured on the stand." But the prosecution hasan unassailable advantage-the victim has noreason to lie. 2 The defense counsel cannot main-tain that the tavern owner has a reason for falselyimplicating the officer since he was not arrested byhim, nor can the defendant avoid the impact ofthe tavern owner's explanation that he was afraidhe would lose his license and his business if he didnot accede to the officer's demand for money.

Part of the prosecution's appeal in a case like theone described above is its disarming simplicity, in-volving as it does the payment of money to a po-lice officer by a person at the mercy of policepower. The prosecution's task becomes increas-ingly more difficult and complex when it attemptsto trace the money to higher ranking police officerswho did not do the collecting, but participated ina planned scheme to extort money from manyvictims. In such a case, evidence is produced

7 These cases usually involve the indictment ofhigher police officials who did not take part in theactual collection but who received their money fromother officers.

"0 If the officer admits that he was there, he oftendenies the payment and provides a reasonable excusefor not making an arrest. For example, he may claimthat the minor was almost twenty-one and in hisjudgment a warning was sufficient.

81 This is to be expected since police officers generallyhave numerous opportunities to appear in court andare practiced witnesses.

82 For this reason, a defendant who can find a weak-ness in the victim's identification has a decent chanceof being acquitted.

against the defendants by means of the testimonyof subordinates who.,funneled part of the moneythey collected to their superiors. If distribution ofthe collected money follows the established hier-archy of a police department, it is clear that inorder to move up the ladder, testimony mustcome from witnesses with significant power andposition in the police district where they served.The prosecution thus inevitably finds itself in avery delicate situation. It must grant immunityor recommend leniency for the officer who is incharge of collecting money from the victims inorder to prosecute not only his colleagues who donot take part in the actual collections, but also thesupervising and higher ranking officers.

For example, one case tried in the United StatesDistrict Court for the Northern District of Illinoisdisclosed the following pattern of corruption. Inone particular police district, vice officers whowere charged with the enforcement of the liquorlaws participated in a scheme which focused on thecollection of money from various tavern owners inexchange for protection and better service by thevice squad. Similarly, regular uniformed officers inthe same district had also formed a "club" and col-lected money from the same tavern owners forprotection and increased service by 'uniformedofficers. Every tavern owner paid money eachmonth to the "bagmen" for the vice squad and theuniformed officers. None of this money, however,found its way to the district commander who in-stead received money from organized criminal ele-ments in the district, and who knowingly allowedthe collections by the vice and uniformed officersin order to avoid any objection by them that hewas making extra money. In the actual indictmentand trial of the case the government concentratedon the vice club and the district commander'sknowing acquiescence in their activities. The bag-man and several other vice officers who occasionallydid the actual collecting from the tavern ownerswere granted immunity and testified for the gov-ernment. The other vice officers who did nothingbut receive their monthly portion of the proceeds forkeeping the club secret and for not harassing themember tavern owners were defendants in the case,

In Chicago, where vice officers are answerable onlyto the commander of the district, an extortion schememanned by the vice squad need not involve sergeants,lieutenants and other uniformed officers. The vicecoordinator (vice officer who supervises the others)may direct the proceeds to the commander withoutthe knowledge of the uniformed supervisors.

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HERBERT BEIGEL

'together with the vice coordinator and the district,commander. The tavern owners could only giveevidence against officers who collected the moneyand these officers, almost without exception, wereimmunized government witnesses. The accomplicewitnesses played a more direct role in the illegalactivity than many of the defendants. No matterhow many victims testified, their evidence only im-plicated other government witnesses. The com-mander of the district was effectively implicatedonly by one of the immunized bagmen.8

Under this framework, the structure of corrup-tion dictates that a district commander can only

'be implicated by the vice coordinator or, perhaps,one other officer whom he has taken into his con-fidence.55 The prosecutor has a difficult task be-cause (1) most of the non-police witnesses cannottestify against any officers who are defendants, (2)the credibility of the defendants is pitted againstgovernment police witnesses who are, arguably,more culpable than they, and (3) the prime targetof the case-the district commander-may be con-fronted with only one or two witnesses againsthim. Because of these weaknesses, the prosecutormust count on the inferences that may be drawnby the jury in a conspiracy case, 6 and the effectthat evidence of a massive "shakedown" schemewill have on a jury's view of the credibility of adefense by the district commander that this situ-ation existed in his district without his knowledge.These last two factors are often sufficient to obtainconviction.

84 United States v. Braasch, No. 72 CR 979 (N.D.Ill.1973), the district commander did not actually receiveany of the proceeds of the collections from tavernowners, but nevertheless was indicted and convictedbecause he actively allowed the extortion to continueso that his men would not complain about the moneyhe was receiving from criminal elements in the district(e.g. gambling, organized crime, etc.). On the otherhand, the distribution of money may not stop with thecommander of the district but may continue to thehighest levels of the police department.s5 Indeed, the various vice officers may not even

know the exact source of the money they receive eachmonth but only know that, in return for receiving it,they may not make an arrest in certain establishmentswithout prior approval of the vice coordinator who isdistributing the money.81Once independent evidence establishes a con-

spiracy, heresay testimony is admissible against allconspirators. See, e.g. Dutton v. Evans, 400 U.S. 74(1970); Barly v. State, 233 Ala. 384, 171 So. 729(1937); Reed v. People, 156 Colo. 450, 402 P.2d 68(1965). See also 2 F. WHA.RTON, CRimNAL EvxnxqnE(12th ed. 1955).

87 See United States v. Braasch, No. 72 CR 979 (N.D.

Ill. 1973), where only four out of more than twentydefendants were acquitted.

In a police corruption case which simply involvesthe matching of the credibility of one or two busi-nessmen against the police officer, the defensemust be simple and straightforward. If, for exam-ple, the testimony is that money was extorted inexchange for not making an arrest, the officer cando little else than deny that the extortion tookplace. If the defendant concedes that he was pres-ent at the scene, then he must offer a rational ex-planation for not making the arrest, for it is thefailure to arrest which makes the victim's testi-mony appear credible. In addition, the defendantwill offer evidence of his good reputation in thecommunity. But character evidence will offer littlestrength to the defendant's case if he can assignno motive for lying to the government witness.

In the more complicated cases, a defendant hasthe additional opportunity of attacking the govern-ment's witnesses who concede that they activelyparticipated in the unlawful activity for which thedefendant is charged. Defense counsel may arguethat the prosecution's witnesses do have reasonsto lie, either because they have been granted im-munity or because, if they have entered guiltypleas, they hope for lighter sentences by cooperat-ing with the prosecution." Nevertheless, the de-fense strategy of attacking an accomplice witness'scredibility rarely succeeds. Several reasons accountfor the willingness of the jury to accept the testi-mony of a witness who, but for his cooperationwith the prosecution, would be in the same positionas the defendant. First, once the defendant admitsthat he was associated with accomplice witnesses,he acknowledges that he did not have at least thegood judgment to stay clear of such disreputableindividuals. 5 Second, the jury will probably findit difficult to belive that a widespread extortionscheme could take place without those in authorityat least knowing that it was occurring. Finally, thegovernment's argument, however unrealistic, thatif the accomplice witness lies, he will be prosecutedfor perjury carries great persuasive force.90

83 When a government witness has entered a plea ofguilty prior to trial, his sentence is typically deferreduntil after he testifies. This is done to assure his con-tinued cooperation and to give him the hope that hewill secure a lighter sentence if he favorably impressesthe judge by his testimony.

859 It follows from this that the best defense in anaccomplice witness case is one when the defendant cantestify credibly that he does not even know the govern-ment's witness or that he did acts inconsistent withthe prosecutor's theory, for example, making arrests ofbusinessmen who are paying money each month.

90 Even an immunized witness may be prosecutedfor perjury, since immunity relates only to past criminalconduct. See note 61 supra.

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POLICE CORRUPTION

The judge's most important decision in a policecorruption case concerns his view on whether theevidence is sufficient to allow the jury to decide ifextortion was committed. If the charge to the juryadopts the liberalized view of extortion, 9' the de-

9"The indictment and instructions to the jury inUnited States v. Braasch, No. 72 (CR 979 (N.D. Il1.1973) incorporated this broadened interpretation ofHobbs Act extortion. The pertinent portions of eachwere as follows:

indictment6. That beginning in or about August, 1966, and

continuing thereafter to and including the date ofthe filing of this indictment, at Chicago, and atother places to the Grand Jury unknown, in theNorthern District of Illinois, Eastern Division,[naming 24 defendants] defendants herein, andJOHN A. CELLO, JR., ROBERT W. FISCHER,SALVATORE M. MASCOLINO and EDWARDRIFKIN, named herein as co-conspirators butnot as defendants, knowingly, willfully and un-lawfully did conspire, each with the other and withdivers other persons to the Grand Jury unknown,to commit extortion, as that term is defined inTitle 18, United States Code, Section 1951, whichextortion would and did obstruct, delay and affectcommerce, as that term is defined in Title 18,United States Code, Section 1951, and the move-ment of alcoholic beverages and other articles incommerce, in that the defendants and JOHN A.CELLO, JR., ROBERT W. FISCHER, SALVA-TORE M. MASCOLINO and EDWARD RIF-KIN would and did wrongfully use their positionsas Chicago police officers to unlawfully obtainand cause to be obtained property, to wit: varioussums of money, which money was not due them orthe Chicago Police Department, and which moneywould be and was obtained by certain members ofthe aforesaid 18th Police District vice squad fromthe aforesaid retail liquor dealers and the officers,agents and employees of said retail liquor dealers,with their consent, said consent being inducedunder color of official right, and which moneywould be and thereafter was distributed andcaused to be distributed among the members of theaforesaid 18th Police District vice squad;

In violation of Title 18, United States Code,Section 1951.

Instruct ionExtortion under 'color of official right' means

that property was unlawfully obtained from an-other person by a public officer, under the colorof his office, and the property so obtained was notdue and owing to the public officer, nor was theproperty due and owing to the office he repre-sented. This type of extortion by a public officerdoes not require proof of any specific acts on thepart of the public official demonstrating force,threats or the use of fear.

If you find beyond a reasonable doubt that theGovernment's evidence has established that cer-tain members of the conspiracy alleged in CountI of the indictment used the power and authorityvested in them, by reason of their office as Chicagopolice officers, to obtain money from the retailliquor dealers named in Count I, and that thismoney was not due and owing to these policeofficers or to the Chicago Police Department, then

fense will be hard pressed to effectively argue thatthe payments of money constituted bribery.

Because so much of any police corruption caseinvolves issues of credibility, the jury is confronted.with difficult decisions. It must determine withoutthe benefit of much corroborative evidence who istelling the truth. For this reason, a witness's de-meanor, style of speaking and general appearanceare of great significance. Of even more importanceis the jury's view of public officials and its willing-ness to believe that they are easily corrupted. De-spite careful screening of jurors in such cases, theywill inevitably reflect the view of the communityabout the honesty of its government at the timeof trial.s

CONCLUOSION

In considering the legal and practical issueswhich surround an investigation of police corrup-tion, this article has focused on the investigativeand prosecutorial methods employed to meet thedemands which these investigations have imposed.A question which has not been explored involvesthe political implications of these efforts.

When an investigation is undertaken which hasas its goal the uncovering, through normal criminalprocesses, of instances of illegal activity by locallaw enforcement officials, it must'be recognizedthat the number of those indicted will constituteonly a small percentage of individuals who are infact involved in the kinds of activities which arebeing investigated. No matter how many individ-ual officers are actually indicted and convicted inany investigation, there will be no appreciableeffect on the day-to-day operations and internaldisciplinary mechanism of the police departmentunless efforts are made by those directly in chargeof the department to institute major reforms.Consequently, it is difficult to justify a federal in-vestigation of police corruption on the basis thatsuch an investigation will have any long run ef-fect on the quality or integrity of local law enforce-ment over which the federal government exerciseslittle control.

On the other hand, an investigation which pro-duces significant results may alert the public tothe need for reforming their police department.

I instruct you that that is sufficient to satisfy therequirements of the law that money was obtainedby extortion under color of official right.9In the civil rights cases arising out of the Demo-

cratic Convention of 1968, the United States At-torney's office in Chicago was unable to secure a singleconviction against the police. But today numerousconvictions are being obtained in both police brutalityand corruption cases.

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HERBERT BEIGEL

When local officials protest that the federal in-vestigation of police corruption has been com-menced because of a purely political desire to em-barass those in power at the local level, the onlyrequired response is that, if wrongdoing has in factoccurred, the federal government's intrusion intolocal affairs could be easily avoided by an alert,aggressive and honest local law enforcement ap-paratus. All of the legal and practical methods andconsequences discussed in this article which showan expansion of the activities of the federal govern-ment have resulted not so much from the federalgovernment's desire to investigate local corruptionas from the complete inaction by local officials.There are in existence, of course, state criminallaws which can be employed to prosecute corruptpolice officers. If these laws are not enforced, it isinevitable that another governmental body withpower and authority will eventually take action.Whether or not that action is precipitated by thepolitical climate of the time is irrelevant sinceadequate enforcement at the local level wouldrender such action unnecessary. Once a law suchas the Hobbs Act is broadened to include wrong-doing which had originally been thought to bewithin the province of state law enforcement, itbecomes very difficult to avoid continued federalpressure.

The increasing activity of the federal govern-ment in investigating those in power at the locallevel may cause traditional institutions of the

judicial process to be reexamined. Thus, the use ofimmunity and the broad powers of the grand juryto subpeona witnesses or to command the produc-tion of books and records, the exercise of which issubject to little or no court scrutiny, has recentlybeen questioned by commentators, politicians andthe public. These developments are not new, butrarely before had they been challenged. When,however, these tools are employed in an areawhich is controversial, strong impetus is given forreevaluation. In this regard, an investigation oflocal corruption may ultimately result in the re-vision of the apparatus used in that investigation.It is even conceivable that changes and reforms inthe procedures of investigation will be greater thanthe reforms made in the institutions which are thesubject of the investigation.

It is evident, then, that a federal investigationof local corruption is in many respects a double-edged sword. The investigation not only affects theinstitutions being examined but also the institu-tions which conduct the inquiry. In the end, bothmay undergo change. A police department thor-oughly investigated and scandalized by indict-ments and convictions of its officers for extensivewrongdoing may be forced to revise and updateits operations and its relationship with the public.Those seeking change may also be changed and,in the process, a new and more sensible balanceestablished between federal, state and local insti-tutions.

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