The Grand Jury is also known
as the people’s panel. Every citizen should know the history and purpose
of the grand jury in order to properly protect his fellow man from prosecutorial
abuse. When citizens are unaware of their power they cannot exercise
that power to uphold justice.
The origin of the grand jury dates back to 12th century England. King
John recognized it in the Magna Carta -- at the demand of the people.
The grand jury was originally a body of twelve, and later twenty-three
men that served as accusers who presented indictments at the request
of not only the prosecutor of the king, but also at the request of individual
citizens. In 1681 the grand jury rule of secrecy was adopted. This allowed
the grand jury to meet in secret, especially out of the sight of the
king’s prosecutors who might interfere. This secrecy provided the grand
jury great power as an independent body with oversight over the government.
The grand jury was brought from England to the American colonies. Grand
juries provided a means for citizens to protest abuses by the king’s
agents. When the Royal Governor of New York sought to have newspaper
editor John Zenger indicted for seditious libel, the grand jury twice
refused to issue indictments.
The U.S. Constitution mentions the grand jury in Article Five of the
Bill of Rights:
No person shall be held to answer for a capital or otherwise infamous
crime, unless on a presentment or an indictment of a grand jury…
The grand jury served the public in two ways. First, it limited the
power of government to prosecute citizens by permitting the grand jury
to vote for or against an indictment and second, it had the power to
make a presentment. A presentment was a public report of the grand jury’s
activity. Through a presentment, the grand jury could make criminal
activity known to the public, including criminal conduct committed by
government officials, judges, or prosecutors.
It is significant that the grand jury is not part of any of the three
branches of the U.S. government—it is a pre-constitutional institution.
Washington attorney John H. Clarke wrote in a motion to the United States
District Court for the District of Columbia, “Although today the grand
jury is more of a prosecutor’s panel, it is still a pre-constitutional
institution, and is still a people’s panel, not captive or relegated
by the constitution to a position within any branches… and it still
serves as a vehicle for effective citizen participation in government.”
Citizens often mistakenly believe that because the grand jury meets
at the courthouse it is under the judiciary or because the grand jury
meets with a prosecutor it is under the executive branch. It is actually
an independent institution adopted by the founders to protect the individual
from prosecutorial misconduct.
In the early 20th century a grand jury used their power to investigate
and indict the mayor of Minneapolis and force the police chief to resign.
Under the leadership of foreman Hovey C. Clarke, the Minneapolis grand
jurors paid private detectives out of their own pockets to investigate
corrupt officials. When the county prosecutor refused to do his duty,
Clarke dismissed him and took over the role of prosecutor. Much has
changed in last 100 years.
From 1789 when the Bill of Rights was ratified, until the codification
of the Federal Rules of Criminal Procedure in 1946, the grand jury was
not regulated by statute.
All three branches of government shared a common interest in limiting
the power of the grand jury—the pre-constitutional institution unregulated
by any branch.
Gradually, the executive branch began to limit the power of the grand
jury. It became standard practice for the government prosecutor to be
present in the grand jury room to present evidence personally. With
the government prosecutor present in the grand jury room, the adversarial
roles between the prosecutor and the grand jury was weakened. The grand
jurors tended to bond with the prosecutor and, ultimately, the institution
has become a rubber stamp for the prosecutor’s indictments. In 1985
former New York Court of Appeals Judge Sol Wachtler, said, "Any prosecutor
who wanted to could indict a ham sandwich."
Rule Six of the Federal Rules of Criminal Procedure limited grand juries
to make presentments public only with the permission of a judge or prosecutor.
The Federal Rules of Criminal Procedure passed by Congress, enacted
by the Executive, and upheld by the Judiciary, removed the independent
power of the grand jury to publicly accuse government officials of misconduct.
But grand jurors can still write a final report or presentment of their
activities, and they can ask the judge to make it public. If a grand
jury’s report accuses the judge or one of his friends of misconduct
it is unlikely it will be made public. Thus, the power of grand jury
secrecy has been reversed to the advantage of prosecutors and judges
who decide what can be made public.
Assistant U.S. attorney and former associate Independent Counsel Miquel
Rodriguez was once asked if the members of a grand jury would be able
to protect the public from corrupt officials, he replied, “They’re all
you’ve got.” Rodriguez advised, “Empowering the grand jury, [by] letting
them know what they can demand, what they should be wary of, what their
independent subpoena powers are, whether they have the authority to
ask questions on their own in the grand jury. The real check and balance
is the grand jury, the common person, selected at random.”
Although the power of the grand jury in the United States has been diminished,
it is still a powerful tool available to the citizens. Grand jurors
can issue subpoenas and question witnesses and they may pursue an investigation
anywhere it leads. Grand jurors can even subpoena and question federal
prosecutors. They can write a report and ask the judge to make the report
public. Grand jurors still have the power to refuse to indict citizens.
Private citizens can no longer bring criminal activity to the attention
of a grand jury for investigation. However, members of a grand jury
do have the power to issue subpoenas and investigate criminal activity
that they know about.
Following the April 19, 1995, bombing of the Alfred P. Murrah Building
in Oklahoma City, the grand jury brought indictments against Tim McVeigh
and Terry Nichols. Although witnesses saw several other men, “John Does,”
with McVeigh, these witnesses were never called to testify before the
grand jury. Prosecutors were not interested in the identity of the men
seen with McVeigh. Grand jurors were likely unaware that they could
follow these leads. Only one grand juror, a horse breeder named Hoppy
Heidelberg, tried to pursue the identity of the other men seen with
Timothy McVeigh. The prosecutor succeeded in having the judge dismiss
Mr. Heidelberg from the grand jury.
Grand jurors should be inquisitive and wary of federal prosecutors.
Citizens should remember what happened to Geronimo Pratt a decorated
veteran of two combat tours in Vietnam. A covert FBI program against
political dissidents targeted Pratt. He was tried and convicted of murder
in 1972 and spent 27 years in prison, eight of them in solitary confinement.
He was innocent. Geronimo Pratt was released from prison in 1997. The
grand jury indictment of Geronimo Pratt was part of the process that
unjustly sent him to prison for so many years.
State and federal grand juries vary in size. A federal grand jury is
made up of twenty-three people. State and federal grand juries have
different rules. Federal and Maryland grand jury handbooks are available
to citizens on the Internet.
Grand jury handbooks available from the government naturally favor the
prosecutors and attempt to limit the scope of grand jury investigations.
The federal handbook offers “practical suggestions for grand jurors”
such as asking “relevant and proper questions.” Citizens have the power
decide for themselves what questions are relevant and proper and to
not allow prosecutors to limit the scope of their inquiry.
Every citizen has the opportunity and obligation to serve on a grand
jury. Grand jurors are drawn at random from lists of registered voters.
Although the power of the grand jury has been weakened, the grand jury
remains the citizen’s defense against government misconduct.
044/45b19c4c/csuspect/HLT_January2007.pdf>article appeared originally
in the January 2007 Hyattsville (MD) Life & Times.
It is reprinted here with their permission. See also “<http://www.dcdave.com/article5/110605.htm>Jury
Duty: Time to Bring Back the Runaway Grand Jury.”