Fitzpatrick: The Grand Jury is What Makes America a Constitutional Republic, Part 1

“TOOL FOR TYRANNY”

by Sharon Rondeau

(Jun. 23, 2013) — Fifth Amendment grand juries in the United States were originally intended to conduct their own inquiries into matters of suspected crimes, including on the part of government officials.  Additionally, average citizens were at one time able to present evidence of a crime or exculpatory evidence directly to a sitting grand jury.

In 1166, Britain’s King Henry II declared that accusations against an individual of a crime must be “presented” by a grand jury, hence the term “presentment” contained in the Fifth Amendment.  At the time, it was understood that the grand jury would issue presentments in the interest of pursuing the king’s political enemies.

Evolving over several hundred years, however, the grand jury developed into a buffer between an overzealous government and its people. During the late 17th century, a grand jury refused to produce presentments against two opponents of the monarch, thereby asserting its independence of him.

In a famous 1734 case involving The New-York Weekly Journal publisher, John Peter Zenger, a grand jury failed on multiple occasions to issue a presentment against Zenger for publishing material critical of New York Governor William Cosby, who represented the British Crown.  Cosby then circumvented the grand jury and charged Zenger by means of “information” with “seditious libel.”  Zenger was found “not guilty” by the jury, and his case became an impetus for the Founders’ inclusion of freedom of the press in the First Amendment to the Bill of Rights.

Scholar Jerold H. Israel writes of the American colonial grand jury:

At the start of eighteenth century, the grand jury was a key participant in the criminal justice processes of both the states and the federal government. As commentators later noted, the grand jury provided both the “shield” and the “sword” of the criminal justice system. In screening proposed indictments put before it by the prosecution (or private complainants), it shielded potential defendants from mistaken or vindictive prosecutions. In pursuing through its own investigative powers possible crimes that had come to its attention through the jurors’ knowledge of the community, it provided a sword against criminals whose activities might otherwise have escaped prosecution. Moreover, particularly in western states, the grand jury took on a broader “public watchguard” role as it investigated and issued public reports on governmental misfeasance that did not involve criminal behavior (a practice that continues today in many states).

Since Congress amended the Federal Rules of Criminal Procedure in 1946, “presentments” generated by grand juries were rendered “obsolete.”  Recent research on grand juries presented by retired attorney Leo Donofrio in early 2009 shed light on the ways in which the grand jury “has been subverted by a deceptive play on words since 1946 when the Federal Rules of Criminal Procedure were enacted.”

In January 1947, The Yale Law Journal published an essay by George H. Dession entitled “The New Federal Rules of Criminal Procedure, II*” which began:

The Grand Jury.  In approximately half the States as well as in England the use of the grand jury as an investigative body, and of grand jury indictment as a step in prosecution, has been largely abandoned.  This old institution has, however, been retained in federal practice pretty much in the traditional common law form…

The article continues on page 201:

…We are…committed by the Constitution to grand jury participation in the accusatory process in all federal felony cases—save where a defendant voluntarily waives indictment.  One may…regard this as a nuisance.  Prosecutors understandably prefer to write their own tickets in all but the infrequent cases where an opportunity to delegate responsibility may be welcome.  It is commonly argued that grand juries more often than not “rubberstamp” bills of indictment, and that on the rare occasions when they do “run away” they are likely to exercise poor judgment.  Such contentions are not altogether unfounded in the experience of any prosecutor; it is true that grand juries in the urban communities of today hardly perform the same function as the old “grand inquest” of the rural English county, indicting on common knowledge, in the days before public prosecutors or highly organized police forces existed.

In Roger Roots’s 2000 essay entitled “If It’s Not a Runaway, It’s Not a Real Grand Jury,” the author writes:

Before the Federal Rules of Criminal Procedure — which made independently-acting grand juries illegal for all practical purposes — grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.^[8] One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:

In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a “runaway” grand jury investigation of issues that a prosecutor does not want investigated, the powers of the grand jury enhance the powers of the prosecutor.^[9]

A person subpoenaed to appear in front of a grand jury must be cautioned that his testimony could be “used against” him, although grand juries can issue grants of immunity to witnesses, another power which has been upheld by the U.S. Supreme Court.

The late Alan Stang, who had had Donofrio as a guest on his radio show to discuss grand juries in 2009, wrote in an essay that in 1992, Justice Antonin Scalia, in delivering a majority opinion of the U.S. Supreme Court, said of the grand jury:

““[R]ooted in long centuries of Anglo-American history,” Hannah v. Larche, 363 U. S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It “‘is a constitutional fixture in its own right.’”

. . . In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.

…Notice! The only thing the judge should do, says the Supreme Court, is assemble the grand jurors and swear them in. That’s all! Again, the court does not preside over it. The grand jury goes to work “as a kind of buffer or referee between the Government and the people.” The grand jury protects the people. It oversees the government. It does that by investigating the government, by rooting out government corruption.

Of modern grand juries, Israel states that a prosecutor routinely introduces evidence to a grand jury, but that the grand jury, at least in theory, retains its function as “independent” of the prosecutor’s influence.  Although considered an “arm of the court,” the grand jury retains the discretion to indict or not to indict based on the evidence it has reviewed.  However, “The court cannot order the grand jury to indict or refuse to indict, but in most jurisdictions it can substantially influence what matters are considered by the grand jury.”

In 1999, a grand jury investigating a high-profile crime issued an indictment, but the prosecutor refused to sign it.

Walter Francis Fitzpatrick, III (USN, Retired), has been attempting to bring exculpatory evidence in the case of Darren Wesley Huff, who was convicted of a federal charge in October 2011 and sentenced to four years in prison in May 2012, to a sitting federal grand jury within the Eastern District of Tennessee, where Fitzpatrick resides.  However, U.S. Attorney William C. Killian, who was nominated by Obama and has spoken at several “civil rights” forums on behalf of the Islamics in the community, has refused Fitzpatrick an audience, as has a magistrate working under Killian.

Killian’s office prosecuted Huff and rejoiced after he was sentenced, despite the lack of evidence and false statements made by FBI agent Mark Van Balen in his sworn affidavit.

Much inaccurate information exists about Huff’s “intent” and words prior to April 20, 2010, when he traveled to Madisonville, TN to attend a hearing for Fitzpatrick.  As observers were not permitted to enter the courthouse, Huff and an acquaintance spent the morning at a local restaurant and left uneventfully after approximately two hours.  Ten days later on April 30, Huff was arrested by claims contained in Van Balen’s affidavit, after which indictments were issued by a grand jury.  A local television station reported that “on April 20, officers in Madisonville reported numerous individuals in possession of openly displayed and concealed firearms, in the area around the courthouse.”

Eyewitnesses have conversely stated that no one was confronted, arrested or detained, and no individual was ever identified to have been “in possession of openly displayed and concealed firearms.”  Interviews conducted by members of the FBI following the April 20 hearing yielded no evidence of an intent to “take over the courthouse.”

Fox News reporter James Rosen was named a “criminal co-conspirator” by an inaccurate FBI affidavit so that the government could search his emails and phone records.  To date, he has not been prosecuted, but the potential remains.

Early in 2009, Carl Swensson formed a citizens’ grand jury to review evidence of forgery and fraud on the part of public officials involved in the election of Barack Hussein Obama.  Also in 2009, Robert Campbell formed the American Grand Jury (now offline) with the intent of advancing evidence of fraud and forgery on the part of Rep. Nancy Pelosi, DNC officials, and Barack Hussein Obama to a traditional grand jury, but Judge Royce C. Lamberth invoked the 1946 Rules of Criminal Procedure, stating that his court was not obligated to review a “presentment.”

In a recent interview, Fitzpatrick described what he sees as America’s greatest current threat to liberty and America as a constitutional republic.

There have been attempts by Bob Campbell, Carl Swensson, Tim Harrington and Larry Klayman to exercise a citizen’s grand jury, and they’ve had some measured success in that, but people ignore grand juries that are not put in place by a judge.  That’s why I’d be surprised if we found many other situations in the country where folks have tried to present information to a sitting federal grand jury or state grand jury.

That is the dilemma we face in the country right now:  instead of people thinking that they go to the legislators seeking remedy and relief for the tyrannical abuses of government gone wild, you need to go to law enforcers; that is, to the grand jury.

People have forgotten what the grand jury is there for and what they can do.  The people who do know and are approaching the grand jury with information cannot do so because the grand juries have been taken over. The letter that Killian sent – it’s his letter and he owns it, and it goes up to Eric Holder and into the White House – this is a policy statement.  What they’ re saying is, “You don’t get in unless we let you in.”

So when you have a situation where, for example, the Associated Press has been invaded by the Department of Justice using unlawful procedures, with Eric Holder signing out the authorization for the subpoena for James Rosen and Holder coming back and saying, “I’m going to investigate myself:  how I did that, why I did that…”  “Well, no, Mr. Holder, that’s not how our system of government works.”  This is exactly the type and kind of a situation that a grand jury needs to take up, but Holder will not allow any of his U.S. attorneys to bring that to the attention of a grand jury.  And the grand juries do not know what kind of power they command because they’ve been trained and conditioned against taking action on their own authority.  They’ve been threatened by the judge that they’ll do this or that to them.  The grand juries have been taken away from us and they’ve been taken over.

This is a riveting discussion that you and I and others have had for four years.  Now you have it in writing.  It is a two-page letter, plus an opinion from Bruce Guyton from 2011 which says, “You don’t get in unless we say you do.”

We’re talking big picture, little picture.  With regard to Darren Huff’s case, we know that Darren is an innocent man.  We’re prepared to take this information into a grand jury and say to them, “Excuse me, but the government overreached here.  The government invented a hoax; they staged this event.  We can speculate regarding their motives, but we don’t have to.  We can tell you factually that this is what they did.  I don’t care why they did it, but this is what they did.”  As a byproduct of that, there is an innocent man, a Navy veteran, locked up.  They say that he committed a crime on a day and a place and a time where he was not physically present at that location, and the federal government knew it.  In going after Mr. Huff, they have preyed upon him and robbed him of his life, liberty, his freedom, his happiness; they’ve destroyed his family…and now they have this man locked up and categorized as a “Sovereign Citizen.”  He is being treated in a derogatory and a defamatory way even in federal prison because of the things Killian did under Holder under Obama.

So we know what they did, and we know that they broke the law, and we know that in order for them to have accomplished this feat and achieved their success in the operation of a government that we do not find in our constitution, they had to go into a grand jury and lie to them.  Now we the people are aware of the lie and are trying to get back into the grand jury, and who’s stopping us?  The people who committed the crimes.

In your mind’s eye, go back and think about the kinds of testimonies that people have been giving to senators and representatives on Capitol Hill as it goes to the events in Benghazi last September, the revelations that we have from Edward Snowden regarding the intrusion by a military command, the National Security Agency, that’s headed by a four-star general into our personal and private communications:  cell phones, regular landline phones and email accounts.  Look at what they’ve done with regard to their intrusions against the Associated Press and Fox News and CBS News that we know about; I’m sure all of the other media outlets have been data-mined as well.

We have reports in the last day or so that judges, military commanders, congressmen, have had their communications tapped. This is tyranny writ large, and the way that our Founders gave us to fight back against this tyranny was through the exercise and operation of a grand jury.  And now we know that Holder will not allow that operation to go forward.  It should have been Holder who said, “You know, this thing with the Associated Press and Fox News, especially with my role in it, is something that I am not allowed to take a look at.”  People are calling for a special prosecutor, but I say, “That gets us only so far.”  What we need here is the scrutiny and examination and inspection of We the People.  We need a grand jury to tell a prosecutor what to prosecute.

So the letter that is just days old, dated the 14th and received the 19th, is a policy statement.  That is how our government is working today.  This cannot be allowed to stand.

I’ve lost count of the number of times and the number of ways that attempts have been made to get in front of a sitting grand jury.  It’s been four years.  The letter that I received accounts for nine attempts that they’ve reported.  But it’s way above that, and when you take into consideration all of the emails and phone calls I’ve made, we’re talking about hundreds of requests, formal and informal, to get in front of a grand jury and tell them what we know.  There have been unending attempts to get to a grand jury through the FBI, for example, and the FBI says, “We’re not even going to take this to a prosecutor, and that’s what you have to do before you can get to a grand jury.”

So where do you have the oversight when it goes to corruption in government?

This is why we’re seeing the counterattacks that we’re seeing.  They’ve made the Constitution of the United States a criminal document.  Anyone who stands to support the Constitution of the United States is a declared criminal.  Anyone who stands to hold the government accountable under Obama’s government is a criminal.  This is the transformation that he’s been talking about.  He has taken the Constitution and made anybody who is trying to defend it a criminal actor, and then taken away our ability to hold the people under our constitution who are really the criminal actors accountable.  They’ve taken away from us the Constitution wherein we discover the grand jury.

There are folks out there who have been raising the alarm about the grand juries.  I recognize that there have been a lot of people, but we are being stopped.  We have not yet been able to find that center of mass, that grouping of people who can come together, stand up and say, “Get out of our way.”  We can’t even find that with the veterans.

We’ve talked about coming together as a large group of people, for example, to advance a treason complaint, and if people don’t want to do that, then they can find some lesser offense that they can use to advance a crime into a grand jury, but it’s going to take large numbers of people.

If the IRS got questions from a grand jury, their answers would be quite different.

The grand juries used to be approachable by people.  The term used in the Constitution is “viconage.”  The grand jury is picked, as is the trial jury, from the community.  Within that community, there were procedures and protocols to make the grand jury aware that a citizen had a report to make.  They were allowed to advance those complaints to the grand jury by walking into a courthouse and saying, “I’m here to talk to the grand jury.”  But you can’t do that any more.

I have a book in my hand here entitled The Ambushed Grand Jury.  It is about a grand jury that was called together in 1989-1990 to look into the Rocky Flats Nuclear Weapons Facility.  This grand jury found out that the government and Rocky Flats had committed some very serious crimes.  So in 1989 they came together and handed down their findings and pushed for a prosecution and were ambushed by a federal judge.  Because of what was at stake financially and the embarrassment to the government as it went to nuclear weapons, the grand jury was shut down.  They were ambushed.  They were threatened that if they did their job, the Justice Department was going to put them in prison.

On page XI, there is a question which reads, “What do you do when you find out someone is committing a deadly crime? Usually you go to the police, and then the government will enforce the law.  But what do you do when it’s the United States government and its corporate contractors committing the crimes and another part of the government is covering it all up?  What happens when citizens investigate the crimes of their own government?”  This book is an exposition of what happens when a grand jury tries to do that.

I don’t know that I have the faith in the populace any more to come together and get behind a grand jury until they start to say, “We need to do our job.”  What I’ve just read to you is an opening statement from a lawyer who assisted in the investigation.  How long have we been talking about this?  Years.  We have to get our grand juries back.  What if we told Eric Holder, “We’re going to turn this over to a grand jury and let them decide.”  But having him investigate himself…what an answer.

And maybe in the future, Obama’s first alert that his government is breaking the law is when he is subpoenaed to appear before a grand jury in DC under Royce Lamberth, who is now sitting on a treason complaint filed back in 2009.  Lamberth in the District of Columbia and Todd Campbell for the Middle District of Tennessee both have these treason complaints sitting there dormant.  They could act upon them by advancing them to their own grand juries, but they have not.

Take a look at what’s going on in East Tennessee.  We had the exposé in The Chattanooga Times Free Press a year ago, and I’m trying to take that into a grand jury at the local level.  This is corruption in our community which is publicly reported and publicly recognized.  I tried to advance it to a grand jury numbers of times and got tossed out. And the reason is that the judge put in place a foreman who is the stopgap.  If it’s not the grand jury foreman, then it’s a prosecutor.  But we do not have the ability as citizens any more to go to our grand juries and say, “This has to stop.”

[Editor’s Note:  One of the allegations exposed by The Times Free Press and reiterated by The Knoxville News Sentinel was one of improper influence of the McMinn County grand jury or some of its members.  Not long afterward, The Tennessee Attorney General’s office announced that an investigation of that allegation and many others would be conducted but concluded that the evidence did not rise to the level of a prosecutable crime.  Members of the Tennessee General Assembly are now investigating.  But are they the best tool to carry out an unbiased investigation against government officials?]

So when people come along who can inform the grand jury of its power, they are stopped right at the door:  “No, you’re not getting in there.”

The grand jury, as it operates in Obama’s world, is not the grand jury that our Founders gave to us and asked us to operate under our constitutional form of government.  They’ve appropriated the name but they’ve changed its function, and now it is a tool for tyranny.  We don’t have a better example of that than the letter that was released by William C. Killian under the orders of Eric Holder under the orders of Barack Hussein Obama.

This is a “fundamental transformation” of our government.

Let’s take the instance that we have right now with regard to Darren Huff’s case.  We know that the government committed a crime; there’s no question about that.  People have said, “Report it to the FBI, and they’ll pick it up, and we’ll see what’s wrong.”  But that isn’t happening, because the FBI is a criminal actor in this.  So what do you do?  Take it to a grand jury.

Nobody should be afraid of my exposing criminal actors.  Any judge should say, “If this man has something to report, let him come in and state it.  If he’s lying, then we’ll prosecute him for perjury.”  But why not let him or her take this into the grand jury and let the grand jury determine what the next step should be?

Taking what we know into a grand jury, we know what a grand jury would do with it.  Mr. Huff was in the company of others that day.  Were any of these people at the R. Beecher Witt government building?  The answer is “No.”  So not only was Mr. Huff not there, but neither were any of the people who were with him that day.  We have one eyewitness account after the next.  The government has no witness that places Darren at that building.  This is a very clear and simple example of when a grand jury should be called in to exercise its authority and autonomy and punish the government for what they’ve done to Mr. Huff.

[Editor’s Note:  The second half of our interview with CDR Fitzpatrick will follow shortly with ways in which a citizen’s denial of access to a grand jury might be remedied.]