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WHAT OUR FOUNDERS GAVE US, HOW WE LOST IT, AND WHAT CAN BE DONE
by Sharon Rondeau
(Jan. 13, 2011) — The Bill of Rights, which includes the first ten amendments to the U.S. Constitution, was adopted by the Framers largely due to fear that the new federal Constitution would allow the central government to step outside of its boundaries and invoke tyranny on the citizenry. The Bill of Rights originally contained 12 amendments, but the first two were not approved.
The Virginia Declaration of Rights, written by George Mason, served as the basis of that which became the Declaration of Independence written by Thomas Jefferson. Mason had decried the fact that the new U.S. Constitution did not contain a list of citizens’ rights to guard against government tyranny, and his work was ultimately incorporated into the Bill of Rights drafted by James Madison.
Section 8 of the Virginia Declaration of Rights states:
That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.
On September 25, 1789, Congress approved 12 amendments which enumerated the rights of the people which were not to be infringed, and on December 15, 1791, three-quarters of the state legislatures approved Articles 3-12 as presented. These became the Bill of Rights containing ten amendments to the U.S. Constitution.
The Fifth Amendment of the Bill of Rights reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A history of grand juries states that “no recorded debate and no opposition” occurred during the Framers’ discussion of the proposed Bill of Rights.
A summary of the case Costello v. United States, 350 U.S. 359, argued in 1956, states:
The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people, and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge, and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings, the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And, in this country, as in England of old, the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.
In United States v. Mandujano, 425 U.S. 564, it is stated:
The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges. “Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice.”
Presentments historically arose from a grand jury without interference from any government official. “It observes and collects evidence of the offense and the government has nothing to do with it. So the grand jury is independent. The court then prepares the indictment based on the presentment.”
In his essay “If It’s Not a Runaway, It’s Not a Real Grand Jury” published in the Creighton Law Review, author Roger Roots states:
In theory, the grand jury is supposed to act as a check on the government — a people’s watchdog against arbitrary and malevolent prosecutions. By and large, however, federal grand juries rarely challenge federal prosecutors.
Today, critics are nearly unanimous in describing the alleged oversight function of modern grand juries as essentially a tragic sham. The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse. In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one.
The 1946 Rules of Criminal Procedure issued by the U.S. Supreme Court with the approval of Congress deemed presentments from grand juries “obsolete,” in regard to which Roots states:
A truly independent grand jury — which pursues a course different from the prosecutor — is today so rare that it is an oddity, and a virtual impossibility at the federal level since Rule 6 was codified in 1946.
A grand jury, a type of jury now confined almost exclusively to federal courts and some state jurisdictions in the United States, determines whether there is enough evidence for a criminal trial to go forward. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments, or by investigating alleged crimes and issuing presentments.
How did this change in the function and governance of the grand jury occur in which a judge or district attorney controls it on the local level and a federal prosecutor wields control at the federal level? Has the government takeover of the Fifth Amendment grand juries resulted in jury-rigging to obtain a specific outcome in certain jurisdictions?
If the government now controls the grand juries and even the trial juries, is there any justice at all remaining in the United States? Are innocent people sitting in jail for years on end waiting for a new trial?
Is the takeover of the grand juries treason against the state and U.S. Constitutions?
Why did the people allow this to happen?
Even in today’s Tennessee Rules of Criminal Procedure, the duties of the grand jury are stated as:
(1) inquire into, consider, and act on all criminal cases submitted to it by the district attorney general;
(2) inquire into any report of a criminal offense brought to its attention by a member of the grand jury;
(3) inquire into the condition and management of prisons and other county buildings and institutions within the county;
(4) inquire into the condition of the county treasury;
(5) inquire into the correctness and sufficiency of county officers’ bonds;
(6) inquire into any state or local officers’ abuse of office; and
(7) report the results of its actions to the court.
Is that happening in Tennessee, or is the grand jury a puppet of the local government?
During times of war, normal constitutional principles are suspended for the entire population if necessary to win the conflict. However, constitutional protections, including trial by jury, are not afforded members of the military even during peacetime. In 1775, the Articles of War were drafted by the Second Continental Congress to apply to the Continental Army under General George Washington. In 1806, the Articles were revised and remained in effect until 1951, when the Uniform Code of Military Justice (UCMJ) replaced it.
A 1919 hearing by the Senate Committee on Military Affairs chaired by Sen. George E. Chamberlain began:
Gentlemen of the committee, there were a great many letters that came to me, and I assume came to other members of this committee, complaining about the administration of military justice. I received a great many letters from parents of young men who had been court-martialed and sent to prison, and from those letters I concluded, as you must have concluded, that there were inequalities in the administration of military justice and much harshness and severity of sentence for the crimes committed, many of which were simple breaches of discipline, such as absence without leave, and so forth. These letters induced me to mention this subject in a little address I made in the Senate on the 30th of December, and later on to introduce a bill on January 13, 1919, to meet the situation, if possible. That bill was tentative. This hearing is on that bill in the hope that it or some other measure that will met the situation may be enacted.
Despite congressional consideration over the years, the constitutional right of trial by jury has never been included in the UCMJ. According to Time, when Maj. Nidal Hasan faces court-martial for his alleged role in the Ft. Hood murders in November 2009, “The UCMJ’s version of the civilian grand jury takes place early in the 120-day process and is much more open and balanced. In the hearing, the prosecution will lay out its prima facie case before a military judge, and the defense will have an opportunity to put in evidence and cross-examine witnesses. Out of that hearing, specific charges will be issued and recommended to an officer with the rank of general in Hasan’s direct chain of command.” However, no grand jury will review the evidence before an indictment is issued, so whether or not there is more “balance” or fairness in the military process remains questionable.
Article I, Section 9 of the U.S. Constitution states that “NoBill of Attainder or ex post facto Law shall be passed.” A bill of attainder has been described as “A legislative act pronouncing a person guilty of a crime, usually treason, without trial and subjecting that person to capital punishment and attainder. Such acts are prohibited by the U.S. Constitution.”
At a military court-martial, the panel seated to hear the evidence brought against the defendant consists of military officers called “members,” not a jury of one’s peers, which is a different system than the above constitutional provision. Therefore, members of the military have never had the benefit of a trial by jury as civilians as guaranteed by the Fifth Amendment.
The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. Process issued in court- martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the Unites States having criminal jurisdiction may lawfully issue and shall run to any part of the United States, or the Territories, Commonwealths, and possessions.
Could a federal grand jury investigate that?
According to Leo Donofrio, JD, the power of the grand jury has been subverted by the 1946 Federal Rules of Criminal Procedure, Note 4, which has attempted to render presentments from an independently-convened grand jury “obsolete.” However, U.S. Supreme Court Justice Antonin Scalia in 1992 affirmed the original role of the grand juries when he stated:
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.
An article by Susan Brenner entitled “The Voice of the Community: (N1) A Case for Grand Jury Independence” states:
Our constitutional framers thought it a sound idea to create structures allowing lay citizens to check government excesses. The jury system, one of the more obvious and enduring of such structures, was included in our governmental framework because of the widespread belief that the community’s voice would ensure a more just judicial system. Requiring community consent before charging a person with a serious crime was considered so important that the grand jury structure was immortalized in the Bill of Rights…
The current status of state grand juries is more complex. Some states have maintained and even increased grand jury independence. Others have devolved into more passive institutions than their federal 68 counterparts. The dominant trend in both systems, however, demonstrates an historical transformation from juries that were once active and aggressive to weak and passive bodies that are utterly dependent upon prosecutors for guidance.
If the government has taken away the grand juries guaranteed to “We the People” by the Fifth Amendment by installing their own puppets, what can be done to reclaim them?
Many citizens’ grand juries convened in 2009 and 2010 and were deemed “constitutional” by Chief Judge Royce Lamberth of the U.S. District Court in Washington, DC. Hundreds of presentments were served upon public officials across the country. However, not one would consider the evidence presented of criminal activity on the part of Barack Obama, Nancy Pelosi, Howard Dean, Congress, and former Vice President Dick Cheney for having certified the Electoral College votes for Obama without any vetting of his constitutional eligibility to serve as President and Commander-in-Chief. Further, Lamberth stated that “the Presentments will be dismissed as the petitioners lack standing to enforce the criminal laws of the United States.”
The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.
If citizens’ grand jury presentments will not be acted upon by those in government positions, what about currently-seated state and federal grand juries? These bodies could be informed of their true power by “We the People” since “In conducting investigations, a federal grand jury can pretty much do what it wants, other than violating certain testimonial and constitutional privileges. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority.”
Another source describes the original function of the grand jury as:
Historically, grand juries have performed two functions. They decided whether someone should be charged–“indicted”–for committing a crime. They also investigated criminal activity and the conduct of public affairs. Before the American Revolution, colonial grand juries essentially ran local government, supervising everything from road-building and bridge maintenance to the operation of local jails. Over the years, they lost much of their public affairs function, as the operation of local government was taken over by administrative agencies, an institution that did not exist in colonial times.
If “We the People” want to rein in our government, what better way than to take back the grand juries from government control? Does there exist one federal grand jury in the country comprising people who will think and act independently and issue a subpoena for Barack Obama’s vital records or to the Monroe County Clerk’s office? If there is evidence that a crime might have been committed, why not present it to a sitting federal grand jury?