“INVESTIGATIVE SUBPOENA” LAW GAVE THE POWER TO PROSECUTORS AND JUDGES
by Sharon Rondeau
(Oct. 30, 2010) — During the last several months, The Post & Email has been focusing on the absence or corruption of grand juries at the county and state level throughout the country. Here a resident of the state of Michigan describes how he attempted to obtain a grand jury hearing in 2009 and discovered that there had not been a grand jury convened in his county for more than a decade due to the passage of the “Investigative Subpoena” statute by the Michigan legislature in 1996.
An article from a 2002 Michigan Law Review provides a description of the Investigative Subpoena statute’s purpose and function as compared to the “grand jury” method of investigation:
…Michigan does have some archaic grand jury statutes still on the books-statutes which are rarely utilized because they are cumbersome, expensive and require extensive judicial involvement.
However, in 1995, the Michigan Legislature passes [sic] the Investigational Subpoena law that became effective on January 1, 1996. This law has given prosecutors and police a tremendous new ability to solve some of the most difficult crimes, by expanding their pre-charging powers, while retaining many of the protections of the old grand jury laws, insuring both judicial scrutiny, and individual rights.
To fully appreciate the beauty of the investigative subpoena law, it is first necessary to discuss how criminal charges are filed in Michigan, and to understand a little background on the grand jury system in general, and in Michigan, specifically. The overwhelming majority of cases in Michigan are charged directly by the prosecutor’s office on a complaint and warrant upon submission of a charging request from police and a police report. In essence, the prosecutor reviews the police report, and if they find the existence of probable cause, they will charge the defendant with a crime. Grand juries are not commonly utilized in Michigan. More on why this is in a moment.
The author of the article, Assistant Kalamazoo County Prosecuting Attorney Stuart L. Fenton, appears to recommend the Investigative Subpoena because of its empowering of prosecutors to “obtain critical witness information.”
In contrast, several other states and the federal system utilize a grand jury system, which acts as an effective method of getting around this problem of uncooperative witnesses. Grand juries have the power to subpoena witnesses before them to testify under oath prior to any charges being filed…
Unfortunately, Michigan is not a “Grand Jury state” – that is, our statutes so [sic] not provide for a standing grand jury system that is to be routinely used in the investigation and charging of crimes. Although we do have two very specific “Grand Jury” statutes, they are unique creatures of the law, and only utilized rarely, in very special circumstances. MCL 767.3, et seq., authorizes the use of a “one-man grand jury” – that being a judge. Witnesses can be summoned before a judge to answer questions under oath regarding a particular crime. At the end of the investigation, the judge decides whether to return an indictment. The proceedings are held in secret, and any violation of secrecy can result in criminal punishment being imposed against the violator. This type of grand jury is typically utilized to investigate public corruption cases.
MCL 767.7b et seq. also authorizes a “Multi-County Grand Jury” to be convened solely for the purpose of investigating crimes crossing two county borders. The attorney general, or each participating county prosecutor, must file a motion seeking permission in the Michigan Court of Appeals to convene such a multi-county grand jury…These grand juries are most commonly used to investigate drug-dealing organizations, which generally operate in several counties…
In essence, the investigative subpoena law gives prosecutors the ability to subpoena witnesses during the investigative phase of a case, prior to any charges being filed, examine them under oath, subject to the powers of contempt and perjury for failure to comply or lying under oath, all without having to convene a grand jury, and all while preserving the important constitutional rights and statutory privileges of individuals.
Another concern raised by prosecutors is that the statute does not have any secrecy protections like the grand jury statues [sic]. Grand jury secrecy was deemed critical to its success. Anyone caught disclosing grand jury information could be prosecuted for violation of the secrecy provisions. With investigative subpoenas, anyone associated with the investigation (attorneys, police, and more importantly witnesses) are hypothetically free to discuss the case with anyone they want, without consequences…the only things that are confidential with investigative subpoena laws are the petition itself, petitions for immunity, and transcripts of witnesses who have been interviewed under oath. Such does not make for an idea investigative environment, but ultimately, the advantages for having such a statute at all far outweigh some of its shortcomings.
Another source states, “Indeed, every state uses the grand jury for at least some purpose, with many using grand juries both to bring criminal charges and to investigate civil and/or criminal matters.”
However, the state of Connecticut has completely eliminated the original grand jury.
In 2001, the state of Connecticut was considering the passage of a legislative subpoena statute. In 2002, it was reported that “Under Connecticut law, crimes charged by the state on after May 26, 1983 are prosecuted by complaint or information, rather than grand jury indictment…The investigatory grand jury is a judge, judge referee, or three-judge panel.”
Further erosion of the grand jury in Connecticut is documented as follows:
Until November 1982, Connecticut’s Constitution required a grand jury indictment before someone could be prosecuted for a crime punishable by death or life imprisonment. A constitutional amendment eliminated this requirement because of perceived inequities in the grand jury process. These included (1) its secrecy and resulting inaccessibility, (2) the inability of prospective defendants and witnesses to present evidence on their own behalf, and (3) restrictions on the grand jury transcripts that effectively prevent courts from reviewing the evidentiary basis for the indictment (State v. Mitchell, 200 Conn. 323 (1986)). Although Connecticut abolished the constitutional grand jury, it retained the investigatory grand jury.
Mr. Schied has stated that Illinois had been planning to pass an investigative subpoena measure similar to Michigan’s “because it had proven itself so successful here in Michigan.” So far, however, Illinois appears to have maintained its grand juries and instituted “multi-county” grand juries for special purposes.
A first-hand account of a grand juror’s 1994 experience in Massachusetts is here.
Can a statute “abolish” a “constitutional” grand jury mentioned in the Fifth Amendment to the U.S. Constitution by means of a statute or constitutional amendment?
In the first Michigan constitution ratified in 1835, it is stated, “11. No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising in the army or militia when in actual service in the time of war or public danger.”
However, the fourth Michigan constitution of 1963 mentions jury trials but does not contain the term “grand jury.”
A history of grand juries can be found here. The late Alan Stang wrote an outstanding historical review of grand juries and how the people can revive the historical citizens’ grand juries which operated without the oversight of a government official.
A detailed description of the grand jury’s purpose and function is here and includes the statement, “The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.” This seems to corroborate what LCDR Walter Fitzpatrick has been saying about “attainder” as the method of tribunal used by the military code of justice.
The following details Mr. David Schied’s ordeal with local law enforcement in Michigan, his attempts to obtain justice, and where his case stands today in light of the fact that he cannot obtain access to a grand jury to hear his case.
What happened, to whom, and when?
Editor’s Note: The following statement was submitted by Mr. Schied before the publication of this article but inadvertently omitted:
Since the crimes against me these past seven years involved school district officials in legal charge of children’s safety, I would like the readers to know that the offense in 1977 had nothing to do with children or sex. Anyone who has an overriding drive to know that explicit information will not have any difficulty in looking up the numerous rulings in my battle against government to find what they are looking for.
In 1977, I pled “guilty” to a one-time teenage felony offense. A jury in Texas heard my story leading up to the event and asked the judge to provide me with “probation” while knowing that an “early termination” of that probation would entitle me to the possibility of a “withdrawal of plea,” a “dismissal of (the original) indictment,” and a “set-aside of judgment,” effectively “clearing” my “slate” and giving me the opportunity for a “second chance” at constructive citizenship.
Two years later, in 1979, the judge from that case received the recommendation from my probation officer that I receive just such an “early termination” and a “discretionary” type of “set-aside” as described above. What I did not know then was that the DA or some other person of the court never updated the criminal history records to reflect the effect of that “set-aside,” and the State of Texas left a “conviction” as the “disposition” and “probation” as the “status” instead of following the laws to “clear” the record down to only what remained of an “arrest” record.
In 1983, believing that the “set-aside” had already “cleared” my record, I nevertheless wanted to ensure that before I left Texas to pursue a career as a professional stuntman in California and an author on “home security and personal protection” (and while believing that if I did make it big as a celebrity in California’s film industry, someone might try to dig up “dirt” on me to bring me back down again), I decided to seek a Presidential “pardon.” The President’s office said that my offense was not a federal one and advised me to go to the Governor. I did so and subsequently received a “full pardon” and “full restoration of civil rights.” What I did not know then, again, was the Texas Department of Public Safety was maintaining outdated records that had not been properly updated and therefore reflected a “conviction” to be pardoned (and was pardoned). What I did not also know then was that according to Texas attorney general opinions, anyone who receives a set-aside such as the type I received was not even eligible for the governor’s pardon “for lack of an object to pardon.” Essentially, I received the pardon only because the record still showed a “conviction” when it never should have. Moreover, despite my receiving the governor’s full pardon, the State of Texas STILL did nothing – despite the laws – to correct this record. (You should note that about the time this was “hitting the fan” for me in Michigan, there were multitudes of people in Texas who had received set-asides like mine who were all up in arms because there were no laws allowing people to have their “arrest” record “expunged,” while people who had received full “convictions” had the right to have their remaining arrest record “expunged” according to the law.)
I never found out about the dereliction of Texas law enforcement officials until I was compelled to submit fingerprints for employment as a Michigan teacher a quarter-century later in 2003. Yet, despite my showing a school “interim” superintendent (formerly the human resources director who had hired me) that I had BOTH a governor’s pardon and a set-aside (when it was difficult to get either and virtually impossible for anyone to have both), I was fired anyway. This was a violation of my federal rights under federal statutes guaranteeing those rights for former offenders to have employment. More significantly, it violated my rights, as written right on the erroneous FBI report received by that school district, for me to “challenge and correct” the accuracy of that FBI record.
That same year, one of my peer teachers submitted a FOIA request for the school district’s public personnel file on me and forwarded to me a copy of that file, revealing that the school officials were disseminating the erroneous FBI report to the public, a state and federal crime under numerous laws. This file also contained two letters written by the school official calling me a “liar” and a “convict” since I did not report the 1977 offense on my job application in 2003 (a quarter-century after receiving clemency).
The above outlines the “starting point” for the crimes being committed against me. A similar thing occurred with a second school district which did the same thing with the document that I eventually received in 2004 as “proof” of my having successfully exercised my federal right to “challenge and correct” the erroneous FBI report. That report had been received by the second school district after I was fired from the first school district, and they hired me on the condition that I allow them to hold copies of my clemency documents while pursuing the correction through an “expunging” of what should otherwise have only been the remaining “arrest” record in Texas.
Where did you go to obtain a remedy?
FIRST SCHOOL DISTRICT:
In 2004, I went to the county circuit court where the school district was located which terminated my employment. My case was brought by the Michigan Education Association (union) knowing that my rights were grossly violated by the school official overextending her authority and trying to make an example out of me while flexing her muscles in a new position as she rose from human resources director to “interim” superintendent. I watched as this case fell apart by corruption in the court. The school district had an attorney who flagrantly committed “fraud upon the court” and the judge of the circuit court “cherry-picked” what it was she wanted to litigate. Moreover, the judge violated my constitutional rights to “privileges and immunities” and to not be subject to “self-incrimination” and “double jeopardy” by ignoring notice that I had received an “expunction” of all remaining history in exercise of my right to “challenge and correct” the erroneous FBI report.
Instead, she ordered me to subject myself to deposition questioning and answer questions about my clemency documents. By her doing so, I was compelled by that court order to answer affirmatively that I had once pled “guilty” in order to explain how the “set-aside” had allowed me to have the “plea withdrawn.” I was also compelled to admit that the governor’s full pardon actually pardoned a “conviction.” When we went back to court, the lower court judge then granted in favor of the school district, dismissing all of my claims against the school district by stating that I had admitted pleading guilty and having been “convicted,” thus establishing a new public record in 2005 that I was not only a “felon” but that I was still lying about it a quarter-century later. This would utterly destroy my reputation, my career and my ability to support my dependent family.
Two years later, in 2006, the Michigan Court of Appeals disregarded clear Texas case law and attorney general opinions which stated that after receiving EITHER a “set-aside” OR a “full pardon,” “no conviction exists.” They upheld the lower court decision in an “unpublished” ruling that was published all over the Internet (and is still easily found there) while disregarding the fact that I had BOTH a set-aside AND a full pardon. The court continued to disregard the fact that my right to “challenge and correct” the FBI report was violated by the school district official while ignoring the fact that the school district was disseminating the erroneous FBI report CRIMINALLY under the Freedom of Information Act. The Michigan Education Association took this case to the Supreme Court. However, the court did not even want to “hear” it, so it was dismissed again in 2007.
In 2005, when I saw the way things were heading in the county circuit court (i.e., with the refusal to “litigate” the report of crimes being perpetrated against me by school officials), I took it to the Michigan State Police. The detective handling the case violated numerous of my constitutional “due process” and “victim’s'” rights by doing nothing with my written crime report to him for nearly ten months. Only after I filed numerous complaints upon him did he finally complete a written report of his own, but that report was “perjured” feloniously by his “initial report date” of ten months after my written crime report and subsequently excluded the relevant facts and laws referenced by my crime report to him.
The county prosecutor disregarded my formal complaint on the state police detective and insisted that he, too, “saw no evidence that a crime was committed” while, like the judge of that county, refused to address the relevant facts and laws that I was actually citing.
The following year, I took my complaint about the county prosecutor and the state police detective to the Michigan Attorney General and the Michigan Department of Civil Rights (MDCR) claiming a denial of rights. All I got back from the AG’s office was rhetoric and the recommendation that I “continue working with the local prosecutor” and/or “hire an attorney an pursue the matter in court.” The Michigan Department of Civil Rights claimed they thought they had jurisdictional authority over all other licensed occupations in the state. However, the Michigan Dept. of Education has the jurisdictional authority when it comes to civil rights violations occurring in the field of education. (I found later that there simply is no law protecting teachers as licensed individuals, and in fact, in my other case that went to a different civil court in a different county, there was a ruling that literally stated that “expungements are a MYTH and schoolteachers in Michigan are subject to “life sentences.”)
In 2007, I took the attorney general’s “malfeasance” to the Michigan Governor’s office and to the State Administrative Board of which the Governor was the “chairperson.” There, too, all I got was the runaround while having my case being compared to that of “sex offenders” whose records remain public and are used against them despite their being a “youth” when the offense occurred. I also took the matter of the Michigan State Police detective’s perjury, as well as his supervisor’s refusal to do anything about my complaints and proof of that perjury in the construction of a fraudulent official government document, to the MSP’s “Internal Affairs” department. There they conducted a mock “investigation” of my complaint of corruption at the county level and “found no violation” of any of the officers.
I took my crime reports as well as my allegations of felony government corruption to the U.S. Attorney in Detroit who told me that their office is “not an investigative agency” and sent me to the FBI. The FBI did nothing.
Subsequently, I filed my own RICO conspiracy and corruption case in Ingham County against the Michigan Governor, the Attorney General, the Michigan Department of Civil Rights, the Michigan Department of Education, the State Police, the county prosecutors and the school district officials….basically, the whole State of Michigan. This was the first case I filed while intentionally asking directly for a grand jury to be notified about all this government corruption.
SECOND SCHOOL DISTRICT
What occurred here, inclusive of what occurred with local police, prosecutors, a county circuit court judge, the attorney general, the governor, the Michigan Dept. of Civil Rights, the MI Dept. of Education, the U.S. Attorney and the FBI, is essentially mirrored. The school district level of offenses began to occur in 2005 and 2006 in response to my activities against school district officials in the first county. The court case resulted in 2007 with a ruling that “expungements are a MYTH” and “schoolteachers in Michigan are subject to a LIFE SENTENCE.” The complaints to the Michigan attorney general, the governor, and the rest were carried out virtually simultaneously with the complaints against the first school district and county officials as I realized that the corruption was systemic and infiltrated across a multitude of counties in southeastern and central Michigan.
How did this bring you to the discovery that there are no grand juries in Michigan?
I got so obviously frustrated that I simply began looking up the law. I had already long been looking up laws to try to figure out what the heck was happening with people still claiming that I was “convicted” despite my having BOTH a “set-aside” AND a governor’s “full pardon.” I was also extremely upset that what I instinctively knew was criminal behavior by the release of an erroneous government record to the public under a FOIA request was indeed supported by laws clearly making these acts both state and federal CRIMES. In order to support my numerous crime reports and complaints about corrupt government officials, I had to check and double-check my allegations against law enforcement officials, and later against judges.
By 2007, I was beginning to file my own cases in courts because I was financially devastated and could see that even an honest attorney had no influence against corrupt judges. Soon afterward, I was filing these cases NOT to win but to gather further evidence of the corruption of attorneys, the government “clients” they represent, and of the judges administratively carrying out the “business of the courts.”
I simply started asking lots of questions, looking up laws, and a person working for the county commissioners’ office (in the county of the first school district) stated that as far as she knew, there had not been any grand juries convened at the county level in Michigan in over ten years.
I started asking questions about the county grand jury in Washtenaw County in early 2009, after I had already found the “Investigative Statutes” at the Michigan legislature website. Once I got confirmation that there had not been a grand jury convened in over a decade in Washtenaw County, where I had filed my most recent crime report against government officials, I tried to file it in Wayne County.
Editor’s Note: The conclusion to Mr. Schied’s story will be presented in a Part 2 in the near future. It is our hope that the information contained in this first part will initiate citizens’ investigation of their own state statutes and practices in regard to grand juries.
An article dated October 29, 2010 at the Wayne County, MI website is entitled, “Judge’s Outrageous Order Cripples Wayne County Government.”
Sharon Rondeau has operated The Post & Email since April 2010, focusing on the Obama birth certificate investigation and other government corruption news. She has reported prolifically on constitutional violations within Tennessee’s prison and judicial systems.