From Grand Jury to Grand INJURY
The evolution of grand juries as a shield for the accused
to a sword for the prosecutor
A perfect example of what Ron Paul is talking about is found in how grand juries are used today by the federal prosecution to obtain convictions.
With over 800 years of history behind them, grand juries were considered essential as a barrier against malicious prosecution. Used in ancient England to protect the political enemies of the king and to provide a mechanism to go after the rich and the elite who were otherwise untouchable, grand juries have been a key part of the justice system. The framers of the Bill of Rights relied on that 800 year history of effectiveness to make grand juries part of the 5th Amendment in order to protect the rights of the accused.
The primary purpose was a “shield” for the accused and not a “sword” for the prosecution. The prosecutor gets past the shield for the accused if truth and justice take him there. The sword is the jury of peers who make up the Petit Jury or the trial jury who determine guilt.
The Supreme Court stated that the grand jury: “has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function … of standing between the accuser and the accused…. to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Wood v. Georgia, 370 U.S. 375, 390 (1962). The grand jury is described as the “bulwark of protection for the innocent and the sword of the community against wrongdoers.” Dewey, grand jury, The Bulwark of Justice, 19 THE PANEL 3 (1941)
However, with the passage of time, the role of the grand jury has become more of sword in the hand of the prosecutor than a shield for protecting the accused. As Ron Paul said, “The government uses the constitution to restrain us!”
The Supreme Court also has expressed some doubt concerning the independence of the grand jury: “The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor …. ” United States v. Dionisio, 410 U.S. 1, 17 (1973)
The grand jury is frequently criticized for failing to act as a meaningful check on the prosecutor’s charging decisions; according to many people, the grand jury is a “rubber stamp,” perfectly willing to “indict a ham sandwich” if asked to do so by the government. In re grand jury Subpoena of Stewart, 545 N.Y.S.2d 974, 977 n.1 (App. Div. 1989) “Many lawyers and judges have expressed skepticism concerning the power of the grand jury. This skepticism was best summarized by the Chief Judge of New York in 1985 when he publicly stated that a grand jury would indict a ‘ham sandwich.’ “
As one former prosecutor put it, “If you gave [grand jurors] a napkin, they’d sign it.”, grand jury Called Tool of the Prosecutor, Aviz. DAILY STAR, Feb. 10, 1974.
The “rubber stamp” role of the grand jury is supported by statistics. In an opinion editorial, it was noted that grand juries in Oregon resulted in 99.6% of cases returned in indictments. Similar statistics are cited throughout the nation and at the federal level.
Grand jurors rarely ask questions or take control of the proceedings in any meaningful way, probably because prosecutorial pressures discourage them from doing so. United States v. Kleen Laundry & Cleaners, 381 F. Supp. 519, 521-22 (E.D.N.Y. 1974) (discussing extent to which prosecutors control grand jury investigations).
SHOCKING CONSEQUENCES OF GRAND JURY BECOMING A SWORD RATHER THAN A SHIELD
Instead of being the shield and protection to the accused as intended by the Bill of Rights, the grand jury indictment process becomes a horrifying sword in the hands of the prosecutor to frighten, intimidate and punish the accused.
By traditional trial standards, a grand jury is allowed to consider a surprising, even shocking, mix of evidence. The prosecutor is not required to inform the grand jury of evidence that favors the suspect, even if that evidence is exculpatory. Jurors are allowed to consider hearsay, illegally obtained evidence, tips, rumors, or their own knowledge of the alleged crime.
The Rules of Evidence do not apply, so the prosecutor can ask leading questions and pursue matters that would be considered irrelevant if presented at trial. The decision of which evidence to present is also in the prosecutor’s hands: the suspect has no right to testify in his own defense, and if he does testify, is not allowed to bring counsel with him into the grand jury room. The suspect may not put on contrary evidence, is not given access to the testimony of his accusers until the trial begins, and indeed, may not even be told he is being investigated.
Gerstein v. Pugh, 420 U. S. 103, and, as a general matter, “a challenge to the reliability or competence of the evidence” supporting that finding “will not be heard,”
The result of these lax evidentiary standards, when combined with the prosecutor’s discretion over the presentation of the evidence, is that grand jurors hear only what the prosecution wants them to hear — the version of the facts that most likely lead to a finding of guilt as possible, regardless of whether that version is based on evidence that will be considered at trial.
In the public’s mind an indictment often carries a presumption of guilt; it can cause economic harm and damage to reputation even if the defendant is later acquitted at trial. United States v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979) (“[A] handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo.”).
In re Fried, 161 F.2d 453, 458 (2d Cir.) (FrankJ.) (“[A] wrongful indictment is no laughing matter …. In the public mind, the blot on a man’s [reputation], resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty.”), cert. denied, 331 U.S. 858 (1947).
In grand juries: Wasteful and Pointless, N.Y. TiMEs, Jan. 6, 1990, at 25 by Sol Wachtler , Chief Judge of New York State argued that “[t ] he public often equates an indictment with guilt, either because it is ignorant of the difference between grand and petit juries or because… it assumes that where there is smoke in the form of an indictment, there must be fire in the form of guilt”.
THE GRAND JURY INDICTMENT OPENS THE JAWS OF HELL
In this writer’s opinion, the most dangerous aspect of a grand jury indictment which is based on such bad evidentiary standards is that it can lead directly to pretrial detention and the horrors of prison life.
A grand jury indictment is considered probable cause of guilt and courts have ruled that it is enough probable cause to justify pretrial prison. United States v. Williams, 504 U. S. 36. “A grand jury’s probable cause finding may, on its own, effect a pre-trial restraint on a person’s liberty.” So, all that is needed for a judge to justify pretrial detention and the horrors of prison life is the indictment of a grand jury, which indictment is based not on protecting the accused but helping the prosecutor to get a conviction.
We have witnessed, in the Bundy et al trials, what happens to accused who are imprisoned while awaiting trial by a Petit Jury or trial jury:
- Pretrial detainees are treated the same as convicted prisoners. While claiming that pretrial prison is not a violation of due process because it is “regulation” and not punishment, the pretrial prisoner is treated exactly the same, with all the horrors of prison including strip/cavity searches, solitary confinement, high priced commissary products, brutal guards, terrible communication technology, and much more.
- Denial of speedy trial rights (Link to Redoubt article) where a pretrial detainee can suffer in prison for 5 years or more without a trial.
SECRECY AND STAR CHAMBERS
Senator Edward Kennedy said that grand juries are, “a dangerous modern form of star chamber secret inquisition” N.Y. TIMES, Mar. 14, 1973, at 11
Star chambers became synonymous with abuse and with injustice, operating in secrecy and without checks and balances and forcing the defendants to self incrimination. It was the bad reputation of Star chambers that led to the 5th amendment and protection from self incrimination.
Senator Kennedy was right, the grand jury system is like the Star chambers of old and can and has been abused in favor of the prosecutor and the federal team’s agenda and narrative.
The secrecy surrounding grand jury proceedings works to the detriment of the accused and to the benefit of the federal team, including the prosecutor.
But some courts and legal scholars feel that secrecy for secrecy sake should no longer be the rule…. Rather, the maintenance of the wall of secrecy around grand jury testimony should be grounded on sound reason. Parpliano v. District Court, 176 Colo. 521, 527, 491 P.2d 965, 968 (1971). See also United States v. Marion, 404 U.S. 307 (1972); In re Proceedings before the grand jury Summoned October 12, 1970, 321 F.Supp. 238 (N.D. Ohio 1970).
GRAND JURY REFORM?
The most outspoken opponents to grand jury reform are the prosecutors. ABA GRAND JURY POLICY AND MODEL (2d ed. 1982) (noting that efforts at grand jury reform “have drawn strong attack from many prosecutors”)
The position that defendants should be able to investigate grand jury minutes, or question grand jurors once an indictment has been returned, to establish the misconduct of the prosecutor does not violate the policies underlying the maintenance of grand jury secrecy, and is also consistent with the approach taken by recent legislative enactments.
As we have shown in other articles, the prosecutor wields great power, so much power that judges and elected representatives seem to fear them because the prosecutor can manipulate the grand jury to indict not only a ham sandwich, but a judge or congressional representative who may threaten the power base of prosecutors.
Reform will only come when the majority of the people wake up, become educated and say, “Enough is enough! We need to go back to our constitutional roots and we need to find more politicians like Ron Paul who recognize that the constitution today does not restrain government. It is being used to restrain us!” Until then, our political prisoners and their families will mourn and cry in anguish.