A United American Voice
columnist: * Justin Plumlee (American)

Topic: Government Accountability
Whatever happened to the Grand (Old) Jury? Part 1

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This is the best way to control our public servants. We must do all that we can to charge those who are breaking the law with violations of the Law. enjoy. Copy and keep. Learn it and learn this well!

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by * Justin Plumlee (American)
(libertarian)
Sunday, August 10, 2008

How the grand jury was captured by government officials and what must be understood to make it free again.
Adapted with permission from an article by Jim Kerr, from the Winter 2004 edition of Reasonable Action.

"Today, the grand jury is the total captive of the prosecutor," wrote one Illinois district judge, "who, if he is candid, will concede that he can indict anybody, at any time, for almost anything before any grand jury."1
If every move of a grand jury is controlled by the prosecutor, then what's a grand jury for? One might well ask.

The Framers of our Constitution intended that the grand jury serve as completely independent inquisitors, freely investigating anything in their jurisdiction, outside of the influence of prosecutors and judges alike. In this way, they would be a check on federal corruption and tyranny.

That true purpose of the grand jury has fallen into obscurity today, through both deliberate sabotage and the general "dumbing down" of America.
Quite simply, the jury no longer knows it is supposed to be independent, and this ignorance has allowed government corruption to flourish in these troubled days.

How the grand jury began
Dating back to the Magna Charta (1215 AD), the grand jury's character has changed over the centuries. By the 18th century, it was generally 23 people, acting in secret, who issued charges independently or at a government prosecutor's recommendation. They investigated crimes committed by private individuals and government officials alike. The American grand jury was originally recognized as a defense against the King of England.

In The Grand Jury: An Institution on Trial (1977), authors Frankel and Naftalis write:
The English colonies in America were crucibles for popular anti-monarchical ideology. The grand jury was the initiator of prosecutions, acting in several of the colonies as spokesmen for the peopleand [as] vehicles for complaints against officialdom.'
Since "officialdom" never ceases, grand juries were still needed after American independence was won. Thus the Bill of Rights, ratified on December 15, 1791, included a provision for independent grand juries in the 5th Amendment, which states, in part:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury

Presentments vs. indictments
The public generally understands the term indictment; it has essentially the same meaning it did when the constitution was framed. Joseph Story, the famed jurist, explains:
An indictment is a written accusation of an offence preferred to, and presented, upon oath, as true, by a grand jury, at the suit of the government. [an indictment is] framed by the officers of the government, and laid before the grand jury.

Presentments, on the other hand, are the result of a jury's independent action:

A presentment, properly speaking, is an accusation, made by a grand jury of its own mere motion, of an offence upon its own observation and knowledge, or upon evidence before it, and without any bill of indictment laid before it at the suit of the government. Upon a presentment, the proper officer of the court must frame an indictment, before the party accused can be put to answer it. (emphasis added)

A presentment, then, results from the grand jury doing their job without government interference. Pretty simple, isn't it?

Not to our legal professionals. Black's Law Dictionary , adopting the definition found in Wright's Federal Practice and Procedure, says the term "presentment" is "not well understood":

A grand jury has only two functions, either to indict or to return a no bill.' The Constitution speaks also of a presentment,' but this is a term with a distinct historical meaning now not well understood. Historically presentment was the process by which a grand jury initiated an independent investigation and asked that a charge be drawn to cover the facts should they constitute a crime. With US attorneys now always available to advise grand juries, proceeding by presentment is an outmoded practice." (emphasis added)

So legal professionals today are taught that a "presentment"specifically mentioned in the constitution as a power of the grand juryis outdated.

The jury begins to surrender

Given the power of the grand jury to investigate government officials on their own motion and return a presentment, it stands to reason that government officials have always had a keen interest in curbing the power of the grand jury their natural enemy. And indeed, bit by bit, the seditionist federals of America have whittled away that power, to the present day hobbling of our grand juries.

The demise of the independent grand jury was in full swing by the turn of the 19th century. The practice of allowing a prosecutor to present evidence to the grand jury for indictment had become the norm by then, and independent investigations became rare. The Handbook for Federal Grand Jurors, a government publication, explains the jury's work this way:
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_{Story, Joseph. A Familiar Exposition of the Constitution of the United States (Story's Commentaries.), 3: 1778. Joseph Story (1779-1845), Massachusetts attorney, educator, and jurist; strongly instructed in the principles of American liberty since his father was one of the "Indians" in the Boston Tea Party in 1773, on the Supreme Court for 34 years, often called "Father of American Jurisprudence."
7th ed., 1999.
Wright, Charles Allen. Federal Practice and Procedure, 110, at 459 (3rd ed. 1999).
See www.constitution.org/jury/gj/fgj.htm}
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The major portion of the grand jury's work is concerned with evidence brought to its attention by an attorney for the government. The grand jury may consider additional matters otherwise brought to its attention, but should consult with the United States Attorney or the court before undertaking a formal investigation of such matters. This is necessary because the grand jury has no investigative staff, and legal assistance will be necessary in the event an indictment is voted.

Rule 6: the coup de grce

When it was first decided to "formalize" the common law and make written rules for federal grand juries, many legal professionals thought this a godsend.

But while the writers of the federal rules made provisions for indictments, they made none for presentments. This was no oversight. According to Professor Lester B. Orfield, a member of the Advisory Committee on Rules of Criminal Procedure, the drafters of Federal Rules of Criminal Procedure Rule 6 decided the term "presentment" should not be used, even though it appears in the Constitution.

Orfield states :

There was an annotation by the Reporter on the term presentment' as used in the Fifth Amendment. It was his conclusion that the term should not be used in the new rules of criminal procedure. Retention might encourage the use of the run-away' grand jury as the grand jury could act from their own knowledge or observation and not only from charges made by the United States attorney. It has become the practice for the United States Attorney to attend grand jury hearings, hence the use of presentments have been abandoned.

Now that the powers of the grand jury had been reined in, one sees the term "runaway" applied to a grand jury that pursues criminal charges on its own. Previously, every real grand jury was, in essence, a "runaway."

Of course, no statute or rule can alter the provisions of the Constitution, since it is the supreme law of the land. But that didn't prevent the federal courts from publishing a body of "case law" affirming the fallacy that presentments were abolished. A particularly egregious example:

A rule that would permit anyone to communicate with a grand jury without the supervision or screening of the prosecutor or the court would compromise, if not utterly subvert, both of the historic functions of the grand jury, for it would facilitate the pursuit of vendettas and the gratification of private malice.' A rule that would open the grand jury to the public without judicial or prosecutorial intervention is an invitation to anyone interested in trying to persuade a majority of the grand jury, by hook or by crook, to conduct investigations that a prosecutor has determined to be inappropriate or unavailing.

What is the result?
Investigating seditious acts of government officials can be deemed "inappropriate or unavailing" by the prosecutor, or the judge can dismiss the grand jurors pursuing such investigations. Consequently, corrupt government officials have few natural enemies and go about their seditious business unimpeded.

By the way, they made a rule to take care of "runaways" too, in 1946: Rule 6(g):
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_{At 22 F.R.D. 343, 346
In re Martin-Trigona, 605 F.Supp 453, 460 (1985).}
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At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the juror excused.

Now judges can throw anyone off a grand jury, or even disimpanel a grand jury entirely, merely for exercising its discretion.

Freedom for safety: always a losing trade

Joseph Story stated in his Commentaries that the grand jury was "a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies."

Proponents of the new federal rules argued just the opposite: that vexatious grand juries could deny persons their right to due process and expose those personsespecially government officialsto public accusations that could damage their reputations. (Oh, poor babies. UAV)

But if grand jury "vindictiveness" has been checked by banning presentments, then surely, prosecutors now hold the monopoly on vindictiveness, just as Joseph Story warned.

For example, we commonly see people charged with violating Internal Revenue Code 7203:

7203. Willful failure to file return, supply information, or pay tax
Any person required under this title to pay any estimated tax or tax, who willfully fails to pay such shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 or imprisoned not more than 1 year

Obviously, 7203 is a penalty statute that is, it imposes a punishment for violating some other sections of the IRC wherein the requirements are set forth. A violation of these other statutes must be proved before the penalties in 7203 can be imposed.

Nevertheless prosecutors routinely bring defective bills before grand juries, in that they fail to cite any statutes within the IRC that impose any requirements upon citizens of the fifty states. Grand juries, ignorant of this fact, routinely endorse defective bills. So improper and vindictive indictments have not been abolished by the elimination of presentments.

The lost power of exoneration

Not only was the grand jury's presentment power used to accuse offenders when government prosecutors refused to do so, but it could publicly declare the innocence of the accused, even over the objections of the prosecutor.

Now that grand jury declarations of exoneration are deemed obsolete, it is commonplace for prosecutors to bring a fresh bill before multiple grand juries until they find one that will indict.

Voluntary compliance' gains new meaning

According to the Transactional Records Access Clearinghouse, of 785 federal grand juries impaneled in 1991, jurors voted against the prosecutor in only 16 of 25,943 matters presented to them, a rate of 99.9 percent "voluntary compliance."
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_{At 3: 1779}
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Of course, one cannot lay all the blame for the emasculation of grand jurors on the Rules Committee or government officials.
Much is due to the grand jurors' own ignorance; they are too trusting of federal prosecutors and the judiciary.

Official tampering with the grand jury is also a serious problem. One example is how prosecutors obstructed the grand jury investigation of the bombing of the Murrah Building in 1995. The grand juror in charge of evidence, Hoppy Heidelburg, was thrown off the jury after publicly complaining about prosecutorial misconduct. Heidelburg said the "prosecutors treated us like idiots."

He said grand jurors were forbidden to directly question witnesses. If they had a question, they were to raise their hands like school children. The witness would be removed from the room while the juror's questions were cleared with the prosecutors. If the prosecutors approved the question, the witness was returned so the prosecutors could ask the juror's question.
When one grand juror asked the identity of "John Doe 2"an unapproved questionthe judge threw him off the jury. Heidelburg was adamant that the federal government was suppressing evidence. (Nary a word in the national press about this. Hum.)

Prosecutorial sedition

In early America, a presentment was deemed a mandate to the federal prosecutor, who was thus obliged to prosecute.

What happens today if a grand jury hands down a presentment? One case supporting the doctrine that a grand jury may not issue a presentment without the blessings of the U.S. attorney is In re Presentment of Special GRAND JURY Impaneled JANUARY, 1969, 315 F.Supp. 662 (1970). The syllabus from the case report states:

The District Court, Thomsen, Chief Judge held that true bill' which was returned by grand jury, signed by deputy foreman and delivered to the court without the signature of the US Attorney was not an indictment' and was not sufficient to institute a criminal prosecution against the persons named therein."

Thus, not only are presentments ignored by federal rules, the prosecutor may also ignore the grand jury with impunity.

Restoring the purpose

If grand juries performed their independent duties as envisioned by the Framers, the possibilities for rooting out corrupt government officials are mindboggling.

Fortunately, they can, since the absence of rules about presentments does not eliminate them altogether. Title 28 U.S.C. Ch. 131 2072(b) states as much: "Such rules shall not abridge, enlarge or modify any substantive right."

Thus, the "substantive right" of the Bill of Rights' provision for grand jury presentments cannot be abridged. Regaining the power of the grand jury is a matter of education: people become informed as to what a grand jury is, what it is supposed to do, and how it performs its duty. And whenever a government official obstructs a grand jury in the performance of its duties, that official is charged with sedition and tried.

And that's how the people can begin to root out official corruption and tyrannyjust as the Framers intended.

UAV end

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©2008 * Justin Plumlee (American), all rights reserved. You must have written permission from the author in order to republish this work.
Published: Sunday, August 10, 2008
Last modified: Sunday, August 10, 2008

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