Can the Grand Jury Regain Its Rightful Place? pb

“A GREAT SECURITY TO THE CITIZENS AGAINST VINDICTIVE PROSECUTIONS”

by Sharon Rondeau

(Aug. 15, 2014) — Early on Thursday morning, the National Liberty Alliance (NLA) issued a press release which stated that a common-law grand jury would be seated in an official courthouse in Dixie County, FL that morning at 9:00 a.m.

The NLA has issued numerous videos with the intent to educate the public on its goal to “establish 3,141 common-law grand juries in all 3,141 United States counties” in order to expose public corruption and render justice between dissenting individuals.

On its website, NLA reports that 49 of 50 states now have “constituted the Administration of the Common Law Jury in all counties.”

On Thursday afternoon, an organizer of the common-law grand jury movement reported that the common-law grand jury was, in fact, seated and “heard and decided 2 cases.”

Last year in Pennsylvania, there was mainstream news coverage of the NLA’s efforts to reestablish common-law grand juries as the group believes the Fifth Amendment intended.  A subsequent article on the organization’s efforts reported that “Duquesne University School of Law associate professor Wesley Oliver” was quoted as having said of common-law grand juries, “Whatever the mechanism used to be for convening of a common law grand jury, it’s now been replaced, so I don’t think they’d have any legitimacy at all.”

In colonial times, grand juries comprising citizens of the community assembled to investigate reports of crime and corruption.  Through the 1930s, grand juries performed their own independent probes of the facts and evidence without the involvement of a government agent.  Attorneys were not allowed into grand jury sessions unless to serve as a witness, and the grand jury issued its own presentment if its members believed that enough evidence existed to charge an individual with a crime.

However, in 1946, Congress changed the Federal Rules of Criminal Procedure (FRCP) and pronounced grand jury presentments “obsolete” without amending the Bill of Rights, which would have required the assent of three-quarters of the state legislatures and two-thirds of the Congress.

Lt. Col. Donald Sullivan (Ret.) wrote in his essay titled “Lost Rights” that the change in the FRCP resulted in the “taking by stealth” of constitutional grand juries and a government assumption of power over the grand jury.  Further, he asserted that “The Constitutional power of ‘we the people’ anytime sitting as grand jurors has remained subverted by a deceptive play on words since 1946 when the Federal Rules of Criminal Procedure were enacted. Repeat a lie often enough, and the lie becomes truth. Regarding the Fifth Amendment, a grand jury’s power to return ‘presentments’ at its own initiative without reliance upon any U. S. Attorney, Attorney General or District Attorney to concur in such criminal charges need only reassert itself. “

Former attorney Leo Donofrio wrote in 2009 that “The Constitutional power of ‘we the people’ sitting as grand jurors has been subverted by a deceptive play on words since 1946 when the Federal Rules of Criminal Procedure were enacted. Regardless, the power I am going to explain to you still exists in the Constitution, and has been upheld by the United States Supreme Court despite the intention of the legislature and other legal scholars to make our power disappear with a cheap magic trick.”

In 2001, a federal public defender expounding on the Federal Rules of Criminal Procedure does not mention the term “presentment” although frequently referring to court rules governing grand jury procedure and government indictments.

In 1992, U.S. Supreme Court Associate Justice Antonin Scalia wrote in U.S. v. Williams that “…the grand jury is an institution separate from the courts, over whose functioning the courts do not preside…” The question in Williams was whether or not a federal court could dismiss an indictment after finding that exculpatory evidence against the defendant had not been submitted to the grand jury before it concluded its deliberations.

In his opinion, written for the majority in the case, Scalia added:

“[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.’ ” United States v. Chanen, 549 F. 2d 1306, 1312 (CA9) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F. 2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977). 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. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a).

The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. “Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury `can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ ” United States v. R. Enterprises, 498 U. S. ___, ___ (1991) (slip op. 4) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). It need not identify the offender it suspects, or even “the precisenature of the offense” it is investigating. Blair v. United States, 250 U.S. 273, 282 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, at 59-60, 65, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day to day functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, at 343. It swears in its own witnesses, Fed. Rule Crim. Proc. 6(c), and deliberates in total secrecy, see United States v. Sells Engineering, Inc., 463 U. S., at 424-425.

True, the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. See, e. g., Brown v. United States, 359 U.S. 41, 49 (1959). And the court will refuse to lend its assistance when the compulsion the grand jury seeks would override rights accorded by the Constitution, see, e. g., Gravel v. United States, 408 U.S. 606 (1972) (grand jury subpoena effectively qualified by order limiting questioning so as to preserve Speech or Debate Clause immunity), or even testimonial privileges recognized by the common law, see In re Grand Jury Investigation of Hugle, 754 F. 2d 863 (CA9 1985) (same with respect to privilege for confidential marital communications) (opinion of Kennedy, J.). Even in this setting, however, we have insisted that the grand jury remain “free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.” United States v. Dionisio, 410 U.S. 1, 17-18 (1973). Recognizing this tradition of independence, we have said that the Fifth Amendment’s “constitutional guarantee presupposes an investigative body `acting independently of either prosecuting attorney or judge‘. . . .” Id., at 16 (emphasis added) (quoting Stirone, supra, at 218).

No doubt in view of the grand jury proceeding’s status as other than a constituent element of a “criminal prosecutio[n],” U. S. Const., Amdt. VI, we have said that certain constitutional protections afforded defendants in criminal proceedings have no application before that body. The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so. See Ex parte United States, 287 U.S. 241, 250-251 (1932); United States v. Thompson, 251 U.S. 407, 413-415 (1920). We have twice suggested, though not held, that the Sixth Amendment right to counsel does not attach when an individual is summoned to appear before a grand jury, even if he is the subject of the investigation. See United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion); In re Groban, 352 U.S. 330, 333 (1957); see also Fed. Rule Crim. Proc. 6(d). And although “the grand jury may not force a witness to answer questions in violation of [the Fifth Amendment’s] constitutional guarantee” against self incrimination, Calandra, supra, at 346 (citing Kastigar v. United States, 406 U.S. 441 (1972)), our cases suggest that an indictment obtained through the use of evidence previously obtained in violation of the privilege against self incrimination “is nevertheless valid.” Calandra, supra, at 346; see Lawn v. United States, 355 U.S. 339, 348-350 (1958); United States v. Blue, 384 U.S. 251, 255, n. 3 (1966).

Given the grand jury’s operational separateness from its constituting court, it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure. Over the years, we have received many requests to exercise supervision over the grand jury’s evidence taking process, but we have refused them all, including some more appealing than the one presented today. In Calandra v. United States, supra, a grand jury witness faced questions that were allegedly based upon physical evidence the Government had obtained through a violation of the Fourth Amendment; we rejected the proposal that the exclusionaryrule be extended to grand jury proceedings, because of “the potential injury to the historic role and functions of the grand jury.” 414 U. S., at 349. In Costello v. United States, 350 U.S. 359 (1956), we declined to enforce the hearsay rule in grand jury proceedings, since that “would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules.” Id., at 364.

These authorities suggest that any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings. See United States v. Chanen, 549 F. 2d, at 1313. It certainly would not permit judicial reshaping of the grand jury institution, substantially altering the traditional relationships between the prosecutor, the constituting court, and the grand jury itself…

Shortly before his passing in the spring of 2009, radio host, former CBS producer and writer Alan Stang penned an essay which quoted Donofrio’s work, Scalia’s opinion in U.S. v. Williams, and historical texts which revealed that the power of the grand jury has been eviscerated over time to a tool of the government and only a shadow of its former function in the American justice system.  “The Founding Fathers who wrote the grand jury into the Fifth Amendment would not recognize the puny husk it is today,” Stang concluded.

In 1833, U.S. Supreme Court Associate Justice Joseph Story (1779-1845), in his “Commentaries on the Constitution,” described the grand jury’s function:

A grand jury, it is well known, are selected in the manner prescribed by law, and duly sworn to make inquiry, and present all offences committed against the authority of the state government, within the body of the county, for which they are impannelled. In the national courts, they are sworn to inquire, and present all offences committed against the authority of the national government within the state or district, for which they are impannelled, or elsewhere within the jurisdiction of the national government. The grand jury may consist of any number, not less than twelve, nor more than twenty-three; and twelve at least must concur in every accusation. They sit in secret, and examine the evidence laid before them by themselves. A presentment, properly speaking, is an accusation made ex mero motu by a grand jury of an offence upon their own observation and knowledge, or upon evidence before them, and without any bill of indictment laid before them at the suit of the government. 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. Upon a presentment the proper officer of the court must frame an indictment, before the party accused can be put to answer it. But an indictment is usually in the first instance framed by the officers of the government, and laid before the grand jury. When the grand jury have heard the evidence, if they are of opinion, that the indictment is groundless, or not supported by evidence, they used formerly to endorse on the back of the bill, “ignoramus,” or we know nothing of it, whence the bill was said to be ignored. But now they assert in plain English, “not a true bill,” or which is a better way, “not found;” and then the party is entitled to be discharged, if in custody, without farther answer. But a fresh bill may be preferred against him by another grand jury. If the grand jury are satisfied of the truth of the accusation, then they write on the back of the bill, “a true bill,” (or anciently, “billa vera.”) The bill is then said to be found, and is publicly returned into court; the party stands indicted, and may then be required to answer the matters charged against him.

Story then concluded his description of the function of the grand jury:

From this summary statement it is obvious, that the grand jury perform most important public functions; and are a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies. Nor is this all; the indictment must charge the time, and place, and nature, and circumstances, of the offence, with clearness and certainty; so that the party may have full notice of the charge, and be able to make his defence with all reasonable knowledge and ability.

In the 2014 case of State of Tennessee v. Walter Francis Fitzpatrick, III, the grand jury was commandeered by the government to issue a presentment after a criminal court judge abruptly appointed a new grand jury foreman minutes before it was issued.  During sworn testimony, members of the grand jury revealed that they were compromised, having been provided with “history” on Fitzpatrick prior to issuing the presentment.  Moreover, the charges against Fitzpatrick had been assigned a case number prior to the grand jury’s deliberations. The grand jury indicted; a prosecutor compiled a Bill of Particulars without any evidence; a trial was held in which the accuser denied having made an accusation; no police report was produced; and Judge Jon Kerry Blackwood, who was also compromised, refused to recuse himself.  After less than two hours, the jury found Fitzpatrick guilty of two felonies, which his attorney, Van Irion, said amounted to a criminalization of the First Amendment not only in Tennessee, but throughout the country.

Over the past five years, The Post & Email has published extensive evidence gleaned from Fitzpatrick and many others that county grand juries in Tennessee are not only controlled by the judges and prosecutors of the district, but also intimidated into issuing indictments or pressured to refrain from doing so if the subject person is a political crony who they wish to protect.

While Tennessee Criminal Court Rules charge the grand jury with investigating public corruption, the status of the county treasury, and conditions in the local jail, the grand juries have become a tool of the government to carry out the very “vindictive prosecutions” which Fitzpatrick’s attorney, Van Irion, claimed McMinn County conducted against Fitzpatrick.

In a case in Monroe County, where the same judges hold criminal court, an innocent man has been framed for two felonies so that an accused criminal can retain a sizable estate, sell the assets at will, and likely reward criminally-involved politicians such as the local sheriff, prosecutor’s office and judges with financial payoffs.  Assistant prosecutor A. Wayne Carter, who is a part-time preacher at a local church, is carrying out a “vindictive prosecution” against Young with the full knowledge that Young is innocent after a tainted Monroe County grand jury issued the indictments last summer.  Carter is seeking the revocation of Young’s bond so as to jail him until a rigged trial can be carried out to remove him as a threat to the absconding of his father’s estate.  The Tenth Judicial District prosecutor’s office, for which Carter works, failed to inquire into who forged Young’s father’s will after Young presented clear and convincing evidence of the crime two years ago.

Contrary to Carter’s statement, Young was not asked to testify at the hearing to determine whether or not he would be granted a restraining order against his accuser, Larry David Godwin.  Rather, the judge had asked Godwin if Young’s allegations that Godwin had told a witness that he would kill Young the next time he saw him were true and had then asked Young for evidence.

On Tuesday, Fitzpatrick is scheduled to be sentenced for attempting to exercise his First Amendment right to petition the government for redress of grievances so that a grand jury would perform its Fifth Amendment responsibility to inquire into the evidence he provided.  A pre-sentencing report states that the “crimes” for which Fitzpatrick was convicted by a trial jury have “no victims.”

The absence of a Fifth Amendment grand jury anywhere in Tennessee has seen thousands or perhaps tens of thousands of citizens imprisoned without due process over at least eight decades.  A filmmaker who will be taking video footage early next week of events in Fitzpatrick’s case of various victims of judicial corruption to eventually produce a documentary on a scourge which he said is occurring all over the nation.

After the common-law grand jury was seated on Thursday, an organizer reported (typographical errors left intact):

I’m sure you’re anxious to hear what heppened in the land of Dixie today, right?  Well then, read on….the first domino is falling.

Besides the fact no fireworks went off today (that I saw), history was made!  The men & women that comprised the first seated Common Law Grand Jury in about 80 years in an official judicial courthouse, came away with two separate True Bills from two separate Presentments of crimes to the 25 plus 4 alternate jurors today.

Today at ~10:07am, without any fanfare from either side, not a constable in sight, the CLGJ convened & history was made & resulted in two True Bills.

This first Common Law Grand Jury in 80 or so years, convened in the Dixie County Court House on 214 NE Hwy 351, Cross City, Fla  32628, in Dixie County a short while after 10am.

The content of the Presentments & True Bills have to remain secret until they are filed with the court clerk of Dixie County.

An official press release will come out tomorrow & I can better update you then.

I want to thank those that help spread the word of today’s Dixie event, thank you very much—you helped make history.  Though today’s event was very short notice on everyone who showed up  (whose going down into history today), we got a decent turnout, much to spare over 25 for a jury.

P.S.  Just FYI in case, Common Law, aka Natural Law, is the Constitution.  Common Law was just hidden from us; it never went away.  Ignoring the Constitution is a form of hiding too.